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Spring 2007
Volume 06, Number 2

Newsletter on Philosophy and Law

Articles

Revisiting Raz: Inclusive Positivism and the Concept of Authority

Kenneth Einar Himma
Seattle Pacific University

All positivists accept the Separability Thesis and hence deny there are any necessary moral criteria of legality, but they disagree on whether a legal system can contain moral criteria of legality—i.e., moral principles that directly determine whether some norm counts as law (rather than, say, someone’s subjective authoritative determination of whether the norm satisfies the relevant moral principles). Inclusive positivists hold that moral criteria of legality are conceptually possible; exclusive positivists deny this.

On the face of it, exclusive positivism might seem counterintuitive. As Ronald Dworkin famously observed, moral principles play a conspicuous role in nearly every legal system with which we are familiar—and these principles seem partly to determine what counts as law in these systems. The U.S. Constitution contains language that seems to incorporate moral content as constraints on what counts as law. While it might be true that the concept of a right is not an exclusively moral notion, the concept of reasonableness in the Fourth Amendment is; reasonableness in this context has something to do with moral standards of fairness—which distinguishes this notion from the notion of rational. It is natural to think the Constitution directly defines criteria of legality and that the Fourth Amendment prohibition on "unreasonable" searches and seizures is a moral criterion of legality (e.g., no statute permitting a search on a mere hunch could count as law in virtue of being morally unreasonable).
But even if some given legal system doesn’t contain moral criteria of legality, surely such systems are, one might think, conceptually possible. Intuitively, it is far from clear that moral criteria of legality are logically precluded by the content of the concept of law or related concepts.

Exclusive positivism seems even less intuitively plausible when one considers how it accounts for features of our legal system that seem to incorporate moral principles as criteria for determining what counts as law. When judges decide cases by reasoning with moral principles, they are not, according to the exclusive positivist, identifying the content of existing law; they are creating new legal content. Recourse by a judge to moral reasoning signals a gap in the law that must be filled by the judge’s decision. Although we might intuitively think the content of the law is seamless, the exclusive positivist denies this.
Joseph Raz has made the kind of mark on philosophy that few philosophers can hope to make—and the best of his work will doubtless be read hundreds of years from now. One of his most influential contributions to the theory of law has been his defense of the claim that the very possibility of moral criteria of legality is precluded by a proper understanding of our concept of authority—a concept that figures prominently in our understanding of law and the concepts that figure into legal practices. Given the way we understand the notion of authority, he argues, there cannot be a legal system with moral criteria of legality. The existence of moral criteria of legality is, on his view, as problematic as the existence of a married bachelor—and, ultimately, for the same reason: both are logically precluded by the content of the relevant concepts.1

In this essay, I wish to explain and evaluate Raz’s argument for this idea, an argument that depends on claims about our concepts of both law and authority. His argument in grounded, most immediately, in two claims. First, he argues it is conceptually true that law claims morally legitimate authority. Second, he argues the content of an authoritative directive must be identifiable without reflecting on the dependent reasons that justify the directive. I argue both claims are mistaken.

1. The Razian Analysis of the Concept of Authority

As a conceptual matter, this much seems uncontroversial about the nature of practical authority: a practical authority is the source of directives that create requirements that subjects act (or refrain from acting) in certain ways. States, a paradigmatic example of a practical authority, enact laws backed by coercive enforcement mechanisms; these enforcement mechanisms help to make sense of the idea that the relevant behaviors are required. Parents, another paradigmatic example of a practical authority, issue directives to their children, usually backed by the threat of a time-out or some other punishment, that they are fairly characterized as "required" to obey.

It seems also uncontroversial that authorities have some rational expectation their directives will be obeyed, but it is not clear why. One might think it is because people have a moral obligation to obey authority, but this is problematic for two reasons. First, it confuses the notion of legitimate authority with the notion of authority; a morally legitimate authority might be fairly characterized as creating moral reasons to obey, but an illegitimate authority is not. I doubt Nazi law created even weak prima facie moral reasons to obey it, but if Nazis were genuinely authorities they had a rational expectation that subjects would obey the law. It might be a sufficient condition for an authority to rationally expect obedience if its directives give rise to moral reasons to obey, but it is surely not a necessary condition.

Second, it is doubtful that morally legitimate authorities necessarily create moral reasons to obey. There are a number of well-known reasons for this; for example, a morally legitimate authority might issue a directive that exceeds the scope of its justified authority. But one rarely noticed reason is that some legitimate authorities apply to subjects to whom moral reasons just don't apply: parents have practical authority over very young children, but very young children are not morally accountable for their behavior and, hence, are subject neither to moral obligations nor moral reasons. While parents might have some moral right to guide the behavior of their children, this right applies against third parties and not to the children. Such a right obligates third parties to refrain from coercively interfering with the parents’ authority over their children. This might create a rational expectation on the part of the parents that third parties not interfere, but there is nothing in such a right that would generate a rational (or, for that reason, morally reasonable) expectation of the children that they obey. Making sense of why this expectation is rational in all contexts involving practical authority is something an analysis of the concept of authority is supposed to do.

The Razian analysis of authority begins with an idea that is capable of explaining these two features of authority. On Raz’s view, the conceptual function of authority is to issue directives that "mediat[e] between people and the right reasons that apply to them" (ALM 214). Authorities make decisions that resolve issues about what ought to be done in a way that makes it unnecessary for subjects to figure this out for themselves.

To discharge this function, a normative system, like a legal system, must satisfy two conditions. First, the authority’s decision is contrived to replace (or preempt) the reasons that would otherwise be considered by the subject. As Raz puts it:

The [authority’s] decision is…a reason for action. They ought to do as he says because he says so. …[But] it is not just another reason to be added to the others, a reason to stand alongside the others when one reckons which way is better supported by reason. …The decision is also meant to replace the reasons on which it depends (ALM 212-13).

According to the Preemption Thesis, "the fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should replace some of them" (ALM 214).2

The Preemption Thesis helps to explain the idea that directives state requirements. If the authority’s directive is supposed to function in my thinking as replacing the first-order reasons I would otherwise consider, then it is supposed to function as a second-order reason not to act on my own assessment of the reasons. In essence, then, a preemptive authoritative directive tells me to perform (or refrain from performing) some act A—regardless of how I think or feel about it. I am required to do what the directive describes because I ought to do it no matter what my judgment about it might be; my thoughts and feelings simply don’t matter once the directive is issued and won’t excuse non-performance (in most cases). While there might be more to be said about what an authoritative requirement amounts to, the Preemption Thesis is one intuitively helpful way to explicate that difficult idea.

Second, an authoritative directive, as a conceptual matter, ought to reflect the balance of right reason with respect to what subjects should or should not do.3 Thus, according to the Dependence Thesis, "authoritative directives should be based, among other factors, on reasons which apply to the subjects of those directives and which bear on the circumstances covered by the directives" (ALM 214).

While the Dependence Thesis does not, by itself, explain why authorities have rational expectations of obedience, it is a plausible gesture in that direction. If an authoritative directive is based on the reasons that, as an objective matter, apply to the subjects, then the directive is, at the very least, contrived to require people to do what right reason demands of them. This might not entail that authorities have a justified expectation of obedience, but it is hard to see how any putative authority’s expectation of obedience could be rational (or morally reasonable) if it systematically failed to satisfy the Dependence Thesis (and a system of directives that systematically failed to satisfy the Dependence Thesis would, presumably, not count as "authoritative."4) At the very least, then, this much seems intuitively correct: the Dependence Thesis is a necessary, though not sufficient, condition for an authority’s expectation of obedience to be "rational."

The "service conception" of authority suggests a thesis regarding the justification of authority. According to the Normal Justification Thesis ("NJT"), authority is justified to the extent that the subject is more likely to do what right reason requires by following authoritative directives than by following her own judgment:

The normal and primary way to establish that a person should be acknowledged to have authority over another person involves showing that the alleged subject is likely better to comply with reasons which [objectively] apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding, and tries to follow them, than if he tries to follow the reasons which apply to him directly (ALM 214).

Given the mediating function of authority, it is natural to suppose that authority is justified only insofar as it does a better job than its subjects of deciding what right reason requires.

To see the motivation for NJT, it is helpful to compare the justification for taking someone’s advice. Consider a case in which one person A will be hurt if her friend B does not accept A’s advice. The desire to spare A’s feelings might, depending on the circumstances, be a reason for accepting A’s advice; if the matter were sufficiently inconsequential and the advice was harmless, B might be justified in accepting A’s advice to avoid hurting her feelings. But, as Raz points out, that is not the normal reason for accepting advice: "The normal reason for accepting a piece of advice is that it is likely to be sound advice."5 Likewise, it seems natural to accept and follow a practical authority’s directives because they are likely to require subjects to do what, as a matter of objectively right reason, ought to be done.6 If so, NJT states, at the very least, considerations that are clearly relevant with respect to justifying authority.

2. Law’s Claim to Legitimate Authority

At the foundation of the Razian critique of inclusive positivism is the view that law necessarily claims morally legitimate authority (the Authority Thesis). Raz concedes that law’s claim of morally legitimate authority is often false (the claim to legal authority could not be false if made by a system of law), but he insists this claim is "part of the nature of law": "though a legal system may not have legitimate authority, or though its legitimate authority may not be as extensive as it claims, every legal system claims that it possesses legitimate authority" (ALM 215). The Authority Thesis expresses a conceptual truth about law: it is part of the very concept of law that law claims such authority.

It is important to understand what exactly a legal system is "claiming" when it asserts "it possesses legitimate authority." Raz, like most theorists, regards the notion of legitimacy as a moral notion associated with the existence of a moral obligation to obey law:

[The claims made by law do not show] legal authorities have a right to rule, which implies an obligation to obey. But it reminds us of the familiar fact that they claim such a right, that is, they are de facto authorities because they claim a right to rule and because they succeed in establishing and maintaining their rule. They have legitimate authority only if and to the extent that their claim is justified and they are owed a duty of obedience (AJ 5).7

Thus, Raz concludes, "No system is a system of law unless it includes a claim of legitimacy, or moral authority. That means that it claims that legal requirements are morally binding, that is, that legal obligations are real (moral) obligations arising out of the law."8

On Raz’s view, the Authority Thesis implies that, as a conceptual matter, law must be capable of possessing legitimate authority: "If the claim to authority is part of the nature of law, then whatever else the law is it must be capable of possessing authority" (ALM 215). A normative system that is not the kind of thing capable of possessing authority is conceptually disqualified from being a legal system; that is to say, a normative system not capable of producing norms that generate moral obligations cannot be a legal system.

To be capable of possessing authority, the law must be able to perform authority’s conceptual function of "mediat[ing] between people and the right reasons that apply to them" (ALM 214) by providing preemptive reasons for action. But law is capable of performing this conceptual function only if it is possible to identify the existence and content of law without recourse to the dependent reasons that justify that law.

The reason for this is easy to see, according to Raz’s service conception of authority. If subjects cannot identify the content of the law without reflecting on the balance of right reasons that the law is supposed to reflect, then it simply cannot preempt the subject’s judgments about the balance of reasons. In effect, the subject who identifies the content of a norm by reflecting upon what right reason tells her about the merits of the rule (or about how she should behave) is necessarily following her own judgment about what the balance of right reasons tell her about how she should behave—and not following the authority. Indeed, if it is not possible for the subject to identify the content of the law without reflecting on the balance of reasons, then it is not possible for her to follow the authority because she will be following her own judgment and, hence, it will not be possible for law to perform its conceptual function qua authority by mediating between subjects and the reasons that apply to them.

3. The Conceptual Impossibility of Moral Criteria of Legality

The foregoing, however, logically precludes the possibility of moral criteria of legality. If it is the nature of law that law claims morally legitimate authority and, hence, that law must be capable of performing authority’s mediating function, then it follows that moral criteria of legality are impossible because the subject will not be able to identify the content of the law under an inclusive rule of recognition without considering what the balance of right reason requires—and will hence necessarily be following her own judgment about what right reason requires (assuming she behaves in a manner she deems proper) rather than the law.

Consider, for example, the simple rule of recognition that all and only moral norms are legal norms. A subject cannot figure out how to behave without reflecting on her judgment about what morality requires. Hence, she will have to rely on her own judgment in identifying the content of what purports to be "law" rather than the judgment of the authority who is supposed to be telling her what to do through the promulgation of the relevant legal content. Inclusive legal positivism, then, is logically inconsistent with the service conception of authority, which Raz takes to be our concept of authority.

It is important to understand the position that is ultimately being defended here. Raz’s argument is fully conceptual in character; it is the contents of our concepts of law and authority that, taken together, are logically inconsistent with the existence in any possible legal system of moral criteria of legality. Moral criteria of legality are impossible for the same reason that married bachelors are impossible: the ideas are conceptually incoherent. As is evident, this is a very strong and powerful claim that forces us to explain elements of our legal practices that might seem to involve moral criteria of legality in exactly the ways that the exclusive positivist explains them. What might initially seem counterintuitive appears the only viable explanation for the role of moral principles in judicial reasoning once we fully understand the nature of law and authority.

4. Difficulties with the Razian Argument against Inclusive Positivism

A. Does Law Necessarily Claim Morally Legitimate Authority

As far as I can tell, the claim that law necessarily claims morally legitimate authority is as widely accepted as any philosophical claim contested at all in the literature.9 I have seen this claim asserted (without defense) in a very large number of papers covering a wide range of philosophical topics in law. In consequence, it has come to seem to me that the vast majority of theorists working in just about every area of legal philosophy accept this as an article of faith.

At the outset, it should be noted that this claim, though very natural, raises difficult metaphysical issues.10 A legal system, strictly speaking, appears to be an abstract object (indeed, an extremely complex one) and, hence, by definition, incapable of causally interacting with material beings like us. Of course, certain abstract objects can express propositions and we can glean propositions from sentences by reading and interpreting them; but the sort of abstract object a legal system is looks nothing like a sentence or even a set of sentences. I don’t have any sort of developed theory about what sort of abstract object a legal system is; but it surely includes propositional objects, like a rule of recognition; certain kinds of institutions (which include composite entities like courts and legislatures that are themselves comprised of abstract and material entities); officials; and many other items related to one another in various ways. If this is correct, then Raz’s claim, literally interpreted, involves a category mistake: a legal system, construed as an abstract object, is no more the kind of thing that can make a claim than a banana is. The category mistake in asserting legal systems can make claims is much more subtle than the one in asserting bananas can do it, but it is a category mistake all the same.

Of course, Raz doesn’t hold that law (construed as a legal system and hence as an abstract object) claims anything at all. What he argues is that officials make claims about law as representatives of the legal system in a number of ways:
The claims the law makes for itself are evident from the language it adopts and from the opinions expressed by its spokesmen, i.e., by the institutions of the law. The law’s claim to authority is manifested by the fact that legal institutions are officially designated as "authorities," by the fact that they regard themselves as having the right to impose obligations on their subjects, by their claims that their subjects owe them allegiance, and that their subjects ought to obey the law as it requires to be obeyed (i.e., in all cases except those in which some legal doctrine justifies breach of duty). Even a bad law, as the inevitable official doctrine, should be obeyed for as long as it is in force, while lawful action is taken to try and bring about its amendment or repeal (ALM 215-6).
Accordingly, on Raz’s view, it is not the legal system itself making the claim to authority; rather, he is attributing claims reasonably inferred from the behavior of officials in their activities as officials to law as a whole.

It is one thing to think that, as a contingent empirical matter, legal systems frequently claim legitimate authority; it is another to think this is a conceptual truth. Ronald Dworkin points out that it is surely possible, as a conceptual matter, for officials to doubt that their legal system is morally legitimate without implying that the system of which they are officials is not one of law:

It is one thing to suppose that legal officials often make such claims; it is quite another to suppose that unless they make such claims there is necessarily no law. In fact, many officials do not. Oliver Wendell Holmes, for example, thought the very idea of moral obligation a confusion. He did not suppose that legal enactments replace the ordinary reasons people have for acting with some overriding obligation-imposing directive, but rather that these enactments add new reasons to the ordinary ones by making the cost of acting in certain ways more expensive. Whether a community has law does not depend on how many of its legal officials share Holmes’s views.11

As far as ordinary intuitions are concerned, this certainly seems correct: the institutional system in the U.S. is clearly a legal system regardless of whether officials have or express certain beliefs about the legitimacy of law.

While I think this gestures in the direction of what is wrong with the Authority Thesis, it falls short because Raz does not rest his position on just the claim that officials believe they have legitimate authority. As is evident from Raz’s remarks above, he believes that each of the following practices is needed to signal a claim of morally legitimate authority: (1) the enforcement of law as exclusionary; (2) the use in the law of such terms as "right" and "duty"; (3) the official designation of legal institutions as "authorities"12; (4) the claims of officials that subjects "owe" allegiance and "ought to obey the law"; and (5) the beliefs of officials that they have legitimate authority. Dworkin’s example fails to refute the Authority Thesis because it concerns only a system that lacks (5); while (5) might be sufficient to express a claim of legitimacy, it is not obviously necessary.

Here is an example that goes sufficiently further than Dworkin’s to fully engage the Authority Thesis. I know, according to our concept of law, that North Korea has a legal system; it might not be a legitimate legal system, but it is surely a legal system if anything is because they have all the major institutional pieces in place and the norms promulgated as law are generally obeyed. Yet I have no idea (a) whether any official genuinely believes it is morally legitimate; (b) whether the law is stated in terms of some Korean equivalents of "duty" and "right"; (c) whether the institutions are officially designated as something we would regard as the Korean equivalent of "authority"; and (d) whether North Korean officials speak of being owed allegiance or obedience.13

It is true, of course, that I know North Korean law is enforced as exclusionary, but this does little work. The claim that the law is enforced as exclusionary might be necessarily true of legal systems, but it doesn’t entail, imply, or even insinuate a claim that law is morally legitimate. Mandatory norms, like those that are a necessary feature of law, are, by definition, enforced as exclusionary; that is what makes them mandatory. And it should be clear that the mere existence of some mandatory rule enforced within a social group says, implies, or insinuates nothing that amounts to a claim of moral legitimacy. Even crime gangs operate by mandatory rules enforced as exclusionary and I doubt there is, in most cases, even a pretense of moral legitimacy. So the claim that legal norms are exclusionary, by itself, cannot express or even insinuate a claim of morally legitimate authority.

But if I am correct in thinking that I know that North Korea has law, then Raz is incorrect in thinking it is part of the very nature of law that it claims legitimate authority. By hypothesis, it is true that North Korea has a legal system since I know it does (and only true statements can be known). Moreover, this is true even if it is missing four of the five features that Raz believes expresses a claim to legitimate authority. Since I know North Korea has a system of law without having a clue about the other features, the other features cannot be necessary for the existence of law (otherwise, I would need to know North Korea had these features before I could be justified in thinking and, hence, in knowing North Korea has a legal system). Since the idea that the norms are enforced as exclusionary does not, by itself, express a claim to moral legitimacy, it follows that the Authority Thesis is false.

It is important to be careful here. It does not follow from the above that North Korea is a legal system that does not express a claim to morally legitimate authority; we cannot infer that from the above example because the premises assert the weaker claim that I don’t know whether North Korea instantiates properties (2) through (5) above, which are surely necessary (but not clearly, on my view, sufficient) to express such a claim. But if it is true that I can know North Korea has a legal system without knowing that it instantiates (2) through (5), then it follows that whether or not an institutional system S of norms is, as a conceptual matter, a legal system does not depend on whether it instantiates (2) through (5). That is, it is not a necessary condition for being a legal system that S instantiates (2) through (5). Since the instantiation of (1), by itself, does not express a claim to moral legitimacy and the instantiation of (2) through (5) is a necessary condition for expressing a claim of moral legitimacy, it follows that it is not a necessary condition for S to constitute a legal system that it expresses a claim to moral legitimacy. So while I haven’t a clue about whether North Korea expresses a claim to moral legitimacy, the fact that I know (if this is a fact) it is a legal system shows that there can be legal systems that make no such claim. In other words, the Authority Thesis is false.

Here is another way to make the point. Suppose there is a society S resembling ours as closely as is consistent with the following properties: lawmakers and law-subjects in S, being quite sophisticated philosophically, are all skeptical that law can ever give rise to a content-independent moral obligation to obey law. In consequence, citizens and officials never use potentially misleading terms such as "authority," "duty," "obligation," and "right." Instead, they rely on terms that are understood to be morally agnostic, like "official," "required," "mandatory," "non-optional," and "permitted" (as opposed to "permissible"). There is no official designation of the institutions as "authorities." In S, officials might sometimes claim—albeit rarely—that citizens must obey the law, but they make it clear that all they mean by this is that citizens who do not obey will have certain coercive mechanisms mobilized against them—i.e., that the law will be enforced as exclusionary.

If we assume that each of Hart’s minimum conditions for the existence of a legal system are satisfied in S, there is no plausible, non-question-begging reason to deny that S has a legal system. All the important pieces are there: a social rule of recognition, along with a system of judicial, legislative, and executive institutions it brings into existence that looks very much like ours; and a class of citizens that, like us, generally obey the norms enacted by officials. Given these observations, it makes sense to characterize S as having a legal system because it has all of the pieces necessary to create efficacious regulations for governing behavior—even though there is nothing that could be construed as an institutional claim to legitimate authority. Conditions (2) through (5) are false of S. While condition (1) is true (i.e., the first-order laws in S are mandatory and enforced as exclusionary), this cannot, by itself, state, imply, or even insinuate any sort of claim to moral legitimacy. S might be an improbable society, but it is surely conceptually possible and it surely has a legal system. If so, the Authority Thesis is false.

B. Does Our Concept of Authority Imply Authoritative Directives Must be Identifiable without Recourse to Moral Reasoning?

It is important to realize that Raz is defending a view about our conceptual practices—and, hence, one grounded in contingent social practices regarding both the use of the relevant terms and the institutions those terms describe. This shouldn’t be taken to entail that the content of our concepts are exhausted by our shared linguistic practices regarding the terms; a lexicographer who defines law as, say, "norms enforced by the state" has obviously fallen far short of giving even the beginning of a philosophical analysis of the concept of law. But it does entail that the content of concepts describing socially constructed reality (as opposed, I suppose, to natural-kind terms, like "water") must cohere with the core content of our shared linguistic practices—unless those practices are either incoherent or are incapable, in principle, of enabling us to make sense of some feature the relevant concept must help us to understand.14

This should not be taken to imply that conceptual analysis is continuous with empirical science or that there is no philosophical methodology that is distinct from that of science.15 The fact that the content of our concepts is partly, but not wholly, determined by core features of our contingent linguistic practices does not imply that the entire content of a concept can be identified by the sorts of methodology employed by physicists or sociologists. Much more argument is needed (and proffered by theorists like Brian Leiter16) for the very strong claim that conceptual analysis should be "naturalized."

But it does imply that the analysis of our concepts has an undeniably empirical element: I cannot come to understand the concept of our concept of law without knowing something about what other people do with—and believe about—the associated concept terms. This doesn’t make them infallible, of course. A good piece of conceptual analysis might result in a prescription for revising the core content of these practices and, hence, the content of the concept itself; however, to repeat a point, there must a good reason for doing so (again, perhaps the practices are incoherent or unable to explain something they have to be able to explain).

Taking this methodological constraint seriously, however, helps us to see a problem with Raz’s view that, as a conceptual matter, it must always be possible to identify the content of an authoritative directive without recourse to the dependent features that justify that directive.17 I would hypothesize (and this is a hypothesis about the empirical world that cannot be justified by considerations that are either a priori or conceptual in character) that exclusive positivism is a minority view among any theoretically relevant class of competent speakers. The hypothesis here is that the majority of ordinary citizens, legal practitioners, legal theorists, and legal philosophers specializing in conceptual issues believe (or would believe if they thought about it) that it is possible for a legal system to have moral tests for what counts as law. That is, my hypothesis is that the majority of persons in any relevant class of competent speakers do not believe that the concepts of law and authority logically preclude the possibility of moral criteria of legality—and do not use these concepts as if they do. If I am correct, then the core elements of our shared linguistic practices do not preclude the possibility of moral criteria of legality.

I cannot do any genuine sociology here, but the following empirical claims all seem plausible from the vantage point of the armchair from which we philosophers just love to practice amateur sociology. Consider, first, ordinary speakers. University students are not representative of the population as a whole but, in my experience, the vast majority resist the idea that moral tests for legality are conceptually impossible—even after they read and understand (with much help) not only Raz’s influential arguments for exclusive positivism, but Scott Shapiro’s brilliant recent contributions to the debate.18 Although most of these students cannot begin to articulate a plausible criticism of these nuanced and challenging arguments, they continue firmly in the belief that it is, at least, possible for a legal system to incorporate moral constraints on the content of law into the ultimate rules that constitute norms as being law. Indeed, many remain convinced (incorrectly, on my view19) that the U.S. Constitution accomplishes exactly that.

Legal practitioners, I would hypothesize, would have an analogous response. Lawyers are trained in the common law tradition and are accustomed to a tradition that, at least at one point, described the content of the common law as being determined by the dictates of reason. While this might or might not entail, if correct, a content-based test for legality, I would hypothesize that lawyers and judges steeped in this tradition would find very puzzling the exclusive positivist’s suggestion that this proposition could not truly express a content-based criterion of legality. The same, I would hypothesize, is true of the law professors who teach substantive areas of law but do not specialize in the abstruse debates about the concept of law—especially those between exclusive and inclusive positivists.

Certainly, legal theorists who specialize in these issues are divided on the issue; and, again, I would hypothesize that exclusive legal positivists are in the minority. There are a variety of other conceptual traditions that deny the exclusivist thesis: neo-classical natural law theory defended, among others, by John Finnis, Robert George, and Mark Murphy; Dworkin’s third theory defended by Dworkin and, most recently, Mark Greenberg (I believe Jeremy Waldron and Stephen Perry are also quite sympathetic to various elements of Dworkin’s methodological and substantive views about law); and inclusive legal positivism defended by H.L.A. Hart, Jules Coleman, Matthew Kramer, and Wil Waluchow. There are a number of other very prominent theorists whose views about the possibility of moral criteria of legality I am not sure of (e.g., Leslie Green, Brian Bix, and John Gardner), but the number of avowed exclusive legal positivists seems to me a rather small minority, consisting of Joseph Raz, Scott Shapiro, Andrei Marmor, Julie Dickson (I believe), and Brian Leiter. These latter comprise, of course, an immensely gifted contingent with lots of philosophical firepower, but they seem to be in a small minority on this issue.

Of course, Raz could respond that the rest of us simply have not fully grasped the implications of what is uncontroversial about our concept of authority, but he does not provide much that would support this conclusion. To my knowledge, he has only two arguments that would support this conclusion. The first is wholly contained in the following passage:

Suppose that an arbitrator, asked to decide what is fair in a situation, has given a correct decision. …Suppose that the parties to the dispute are told only that about his decision, i.e., that he gave the only correct decision. They will feel that they know little more of what the decision is than they did before. They were given a uniquely identifying description of the decision and yet it is an entirely unhelpful description (ALM 219).

All this is surely true, but it is not obvious that this entails that it is a conceptual truth that the content of an authoritative directive can be identified without recourse to the dependent reasons justifying the directive. One might reasonably hypothesize that many people would have a different reaction to a case where a legislature is ordered by a court to revise a piece of legislation so that it does not impinge upon a moral right to free speech. While this might not be the most helpful order because it leaves so much work to the legislature, I am not convinced that most people would reject its authority in virtue of its requiring consideration of the dependent reasons to fully identify the content of what the court is requiring. There is simply too much logical distance between the situation described in Raz’s example and the conclusion he wants to draw from this.

The second is the argument that the Preemption Thesis implies this constraint on authority; as noted above, if authoritative directives must, as a conceptual matter, be capable of preempting a subject’s judgment on the underlying reasons, then the subject must be able to identify the content of the directive without having to reflect on these reasons. If the subject cannot identify the content of the directive without reflecting on the dependent reasons justifying it, then she is necessarily following her own judgment—and not the directive. Such a directive, then, cannot do what authority must, as a conceptual matter, be able to do.

The problem here is that it is not at all obvious that there is anything in our core practices regarding use of the concept-term "authority" that entails a commitment to the Preemption Thesis. As Stephen Perry has observed, an authoritative directive need not function as a second-order reason not to act on other reasons to do the conceptual work authority is thought to do; if sufficient weight is assigned to the directives of authority, it might simply outweigh all the other applicable reasons in the balance in the vast majority of cases—which would be enough for authority to be fairly characterized as capable of performing its conceptual function of telling people what to do by issuing directives making certain behaviors mandatory.20

It is certainly not clear that legal officials necessarily intend their directives to function as preemptive reasons. I would imagine that most officials are blithely unaware of the distinction between first- and second-order reasons and wouldn’t care much about the distinction if they were made aware of it. While the point of legal authority is surely to issue directives that make certain behaviors mandatory, it is sufficient to accomplish this that those directives are backed with the police power of the state. Nor is it clear that they should, from the standpoint of morality or practical rationality, intend them to function this way. What authority does, and ought to do, can be done without any claims to the effect that authorities do or should intend their directives to function as preemptive reasons.

Nor is it clear that subjects regard those directives as preemptive reasons. Even if we assume that subjects are aware of the distinction, it is unlikely to think that they do, or even should, regard legal directives as preemptive. People frequently jaywalk when there is no one around in the middle of the night and, hence, violate authoritative directives in such circumstances—presumably because the balance of first-order reasons dictates doing so. It is not clear that there is anything irrational or morally unreasonable about making such decisions. As far as I can tell, there are no directives of any other kind than moral principles that should, as a matter of practical rationality, function this way in the thinking of subjects. If the idea that authority is preemptive plays no necessary role in the intentions of authorities or in the thinking of subjects, there is little reason to think there is anything in the core elements of our shared linguistic practices that entails a commitment to the Preemption Thesis. This thesis does not seem to play any necessary explanatory role in understanding authority or what it does.

Even worse, it makes little sense to think of a young child as being able to process a parent’s directive as a second-order reason not to act on certain first-order reasons. Young children have a hard enough time with first-order reasons; it is doubtful that they have cognitive access to second-order reasons and couldn’t process them even if they did. But if this is true and parental authority is an example of practical authority, then the Preemption Thesis is not a conceptual truth about practical authority. Since very young children fairly characterized as "subject to parental authority" cannot produce a deliberation in which an authoritative directive functions in the way the Preemption Thesis suggests, the idea that such directives are preemptive reasons tells us nothing about how parental authority functions (or should function) in these cases. It is simply false that parents necessarily intend, or should intend, that their directives function this way; and it is false that such directives function, or should function, this way in the deliberations of young children.

There is a sense in which young children behave the same way that someone would who considered a directive as a second-order reason. Children do what their parents tell them, at least initially, to escape punishment—and this is what they would do if they were capable of considering the directive as a preemptive reason and did so. The problem is that neither claim entails a commitment to the Preemption Thesis. Young children do what their parents tell them because those directives are enforced against them and frequently disobey, without anything resembling a general challenge to parental authority, when they think they can get away with it. Unfortunately, this latter feature is inconsistent with a child’s considering the directive as a preemptive reason—on the assumption she is capable of doing so. A young child’s deliberation, such as it is, is confined to consideration of first-order reasons; very young children just don’t have the intellectual wherewithal to formulate second-order reasons—and wouldn’t normally be inclined to consider them as decisive if they could.

Of course, the claim about children is a claim about their ability and not about the content of an authoritative directive: an authoritative directive might be capable of preempting judgment even though a child isn’t capable of using it that way. But, given the paradigmatic character of parental authority as a practical authority, it seems arbitrary to insist that authoritative directives be capable of preempting judgment. Certainly, the core elements of our social linguistic practices do not obviously entail a commitment to the Preemption Thesis. Both arguments fail to establish the claim that is central to the Razian critique of inclusive positivism—namely, that the subject must always be capable of identifying the content of the law without recourse to the underlying reasons.

If all this is correct (including the empirical hypotheses I describe but do not attempt to defend with any genuine sociology), then Raz’s analysis of our concept of authority does not seem to cohere with core features of our shared linguistic practices regarding the associated concept-term. We have no reason to think that so many dissenters are confused about the core elements of our shared linguistic practices regarding the concept-terms "law" and "authority."
On the contrary, we have every reason to doubt that so many competent speakers in these various classes could, as a conceptual matter, be confused about core elements of shared linguistic practices; that they are presumed competent seems to preclude widespread and systematic confusion of a sort that would have to occur if the Razian analysis were correct. The beliefs and practices of competent speakers of a language regarding the core content of some concept-term C determine the core content of that term (assuming C is not a natural-kind term); our language picks out concepts in virtue of our social linguistic practices. For this reason, we should reject the Razian analysis unless Raz can provide some compelling reason to think our practices are confused, incoherent, or incapable of explaining some important feature of legal practice.

5. A Thin Concept of Authority

Some brief concluding remarks about the concept of authority are in order here. My suspicion is that our concept of authority is much thinner than Raz makes it out to be. What I think is uncontroversial about the concept of authority and central to the core of our shared linguistic practices are the claims I described at the beginning of the paper: (1) authority issues directives that, in some sense, require behavior; and (2) authorities have a rational expectation that their directives will be generally obeyed.

Raz fleshes out the content of these theses with claims that I think are not clearly correct. One way, for example, of fleshing out the notion of a behavioral requirement is the Preemption Thesis, but this is surely not the only plausible way to do so. One can require an act by being in a position to enforce a general standard that makes non-performance of that act subject to some sort of coercive sanction-like mechanism. As noted above, an authoritative directive need not function as a second-order reason not to act on other reasons to do the conceptual work authority is thought to do; if sufficient weight is assigned to the directives of authority, it might simply outweigh all the other applicable reasons in the balance in the vast majority of cases—which would be enough for authority to be fairly characterized as capable of performing its conceptual function of telling people what to do.

Indeed, philosophical laypersons are, I think, far more likely than legal philosophers to take what Holmes characterized as the bad man’s view of authority and hold that coercive enforcement of valid norms is a central feature of law. On this intuitive view, authorities can provide a self-interested reason for behaviors that are already required by the balance of moral reasons: failure to do what is required by the balance of moral reasons is subject to criminal or civil liability, which will be enforced by the state’s police power. And there is nothing incoherent with the notion of an authoritative directive that seeks to provide an enforcement mechanism for moral requirements. Indeed, such a conception can also provide an important guidance function: it tells the subject that the norms backed by the state’s police power are the ones that belong to morality.

As I noted above, I do think the Dependence Thesis will figure into an explanation as to why authorities (legitimate or otherwise) have a rational expectation that their directives will be justified, but it does not fully explain this expectation. As Raz points out, subjects must accept some personal being as authoritative to be a practical authority. Acceptance of an authority might not be enough to make it legitimate or to give rise to even a prima facie moral reason to obey it, but it surely helps to explain why authorities have an expectation of obedience that is prima facie rational. If I know you have accepted me as a source of authoritative guidance, it is not prima facie irrational (or unreasonable) for me to expect you to do what I say. It might turn out that what is prima facie rational is not rational all things considered; my orders might be so unjust that it is simply not rational to expect compliance regardless of whether you consent. But the idea that it is prima facie rational for an authority to expect compliance is not logically incompatible with the idea that its directives do not give rise to even prima facie moral reasons to obey. What I have reason to expect and what you have reason to do are two different matters.

In any event, I think that our concept of authority is considerably thinner than Raz believes it will be in the sense that I think not much more can be said about it than (1) and (2) above—though, again, I think the Dependence Thesis is somewhat more plausible as an explication and specification of (2) than the Preemption Thesis is of (1).

Part of the problem here is that we have very few examples of practical authorities, and they differ from each other in some theoretically important ways. Legal systems and parents are two instances of practical authority that differ in a variety of theoretically significant ways: to repeat one, a legal system might be legitimate insofar as its directives create content-independent moral obligations to obey, but that simply cannot be true of parental authority because parents frequently have authority over children who are too young and undeveloped to be subject to the requirements of morality or to consider preemptive reasons.

One can, of course, respond that parental authority is different from legal authority—and it is undoubtedly different in many ways. But it seems ad hoc to insist that the concept of authority Raz seeks to explain is a different concept than the one that applies to parents. Just as it seems plausible to think that moral obligations and legal obligations are two different species of obligation, so too it seems plausible to think that legal and parental authority are two different species of practical authority. Given the significant differences among the few examples of practical authority that we have to work with, I am tempted to think it is just not possible to develop a conceptual theory of practical authority with as much content as is contained in Raz’s theory.

Much has been made of Hart’s famous remark about law’s guidance function, but it has been more often misunderstood than properly understood. Although frequently interpreted as claiming law has a conceptual function, it is clear from Hart’s remarks that he was, in fact, quite skeptical about this very idea:
Like other forms of positivism my theory makes no claim to identify the point or purpose of law and legal practices as such; so there is nothing in my theory to support Dworkin’s view, which I certainly do not share, that the purpose of law is to justify the use of coercion. In fact, I think it quite vain to seek any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of such conduct. This will not of course serve to distinguish laws from other rules or principles with the same general aims…. (CL 248-9; emphasis added).

I think Hart’s skepticism about our ability to be more specific about a conceptual function that would distinguish law from other rules (and a conceptual function of any X will distinguish Xs from non-Xs) is applicable with respect to the concept of authority. At the risk of appearing to simply surrender on a theoretically important issue, I think it quite vain to seek any more specific claims about authority than (1) and (2) above (and what little I have said above about (2)); but I think this is true because the notion of practical authority applies to instances that differ in very important ways from one another.
If this is correct, then it would also seem plausible to conclude that our concept of authority is too thin to do the work that Raz thinks it does in establishing exclusive legal positivism. If the Preemption Thesis is not a conceptual truth, then there is little reason to think that our concept of authority precludes even a legality criterion, inadvisable for so many reasons, that says nothing more than "all and only moral norms are legal norms." While it is true that subjects trying to identify the content of the law must rely on their own judgments about the dependent reasons that justify the law and, hence, would wind up following their own judgments in trying to obey the law, there is nothing in our concept of authority that would logically preclude this—if, as seems quite sensible, our concept of authority is too thin to include anything like the Preemption Thesis.
The function of authority in such cases would be to use its claimed monopoly on force to ensure compliance with moral standards. In essence, the authority would be telling subjects, "we are not leaving it up to your conscience whether to comply with morality; we will make you do so." Of course, this is a recipe for a lot of confusion among officials and subjects, but probably not enough to preclude claiming the existence of a legal system with something that functions as a legal (as opposed to morally legitimate) authority. As long as such a system contains the major institutions and is reasonably efficacious in guiding the behavior of citizens, there is little reason to think that such a system is conceptually disqualified from being a system of law.

Endnotes

1. Joseph Raz. "Authority, Law, and Morality." In Ethics in the Public Domain (Oxford: Clarendon Press, 1994). Hereinafter identified as ALM.

2. Something like the Preemption Thesis is thought to distinguish authority from other forms of normativity. Many normative propositions function as first-order reasons. For example, conditional normative statements, such as, "you should eat your broccoli to stay healthy," function as a first-order reason that may compete with other first-order reasons, such as that expressed by the statement, "you should eat chocolate because it tastes good."

3. Right reasons, for Raz, are those reasons that objectively apply to a person regardless of whether she is subjectively aware of them. Likewise, the balance of right reasons should also be construed as an objective notion: what the balance of right reasons requires does not depend on how the subject perceives that balance.

4. This is presumably why the head of a crime gang is not properly characterized as an authority despite having the ability to tell members what to do and make them do what he demands.

5. Joseph Raz. "Authority and Justification," Philosophy and Public Affairs 14 (Winter 1985): 19. Hereinafter referred to as AJ.

6. For a critical discussion of NJT, see Kenneth Einar Himma, "Just ‘Cause You’re Smarter than Me Doesn’t Give you a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis," forthcoming in Oxford Journal of Legal Studies. Draft version available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=788746.

7. Insofar as Raz believes that "a legal system may not have legitimate authority" (ALM 215), the relevant notion of obligation must be moral. The idea that citizens are legally obligated by laws is a tautology; hence, if all Raz meant by a legal system’s claim to authority is that laws give rise to legal obligations, a legal system’s claim to authority could not possibly be false.

8. Joseph Raz. "Hart on Moral Rights and Legal Duties," Oxford Journal of Legal Studies 4 (Spring 1984): 131 (emphasis added).

9. There are a number of theorists who have contested it. See, e.g., Jules Coleman, The Practice of Principle (Oxford University Press, 2001), 133: "I am not convinced that it is a conceptual feature of law that it necessarily claims morally legitimate authority. The fact that law can serve a variety of legitimate human interests may ground the claim that law must be the sort of thing that can possess a normative power to create genuine duties and responsibilities or confer genuine rights and privileges. From this it hardly follows that the normative power represents a moral authority." See also Philip Soper, "Law’s Normative Claims," in The Autonomy of Law, edited by Robert P. George (Oxford: Clarendon Press, 1996), 233: "Nothing in the practice of law as we now know it would change if the state, convinced by arguments that there is no duty to obey law qua law, openly announced that it was abandoning any such claim." As will be noted below, Ronald Dworkin and I have also contested it. There are presumably others but, as far as I can tell, most everyone else accepts the Authority Thesis.

10. For a much more thorough discussion of these and other difficulties with the Authority Thesis, see Kenneth Einar Himma, "Law’s Claim of Legitimate Authority," in Hart’s Postscript: Essays on the Postscript to the Concept of Law, edited by Jules L. Coleman (Oxford: Oxford University Press, 2001).

11. Ronald Dworkin. "Thirty Years On," 115 Harvard Law Review 1655 (April 2002): 1667.

12. Strictly speaking, this is a very peculiar claim and certainly not true of legal systems like the U.S. I would be very surprised if there were anything in statutes or caselaw that "officially designated" legal institutions as "authorities." In fact, it would be an extremely odd thing for a court or a legislature to do. I imagine the reaction to a congressional enactment signed by President Bush designating legal systems as properly being referred to as "authorities" would generate a great deal of ridicule and criticism.

13. I could make a similar argument of just about any legal system other than that of the UK, U.S., and Canada. I haven’t a clue, for example, whether (2) through (5) are satisfied by the system of institutional norms in France because, well, I simply don’t pay that much attention to what the law in France says or what officials claim. But I think I know that France has a legal system because France is a nation recognized as exercising sovereignty within its own geographical boundaries, something that could not be true of something that lacks a legal system. It is, I think, a conceptual truth that nations/states are partly constituted by legal systems, so I know that France has one. I assume, in contrast to North Korea’s, that it is legitimate; but because I do not know which theory of state legitimacy is correct, I am not terribly confident in any assessments of state legitimacy.

14. Law couldn’t be adequately defined as "commands of a sovereign" because, as Hart famously argued, we cannot make sense on that definition of how law obligates. (Hart, of course, did not make this point in connection with a "definition" of law, but the argument is equally applicable with respect to definitions).

15. For a much more detailed discussion of conceptual methodology and a defense of the traditional view against the attacks of Quine, Leiter, and others, see Kenneth Einar Himma, "Reconsidering a Dogma: Conceptual Analysis, the Naturalistic Turn, and Legal Philosophy," forthcoming in Current Legal Issues, edited by Ross Harrison (Oxford: Oxford University Press); preprint draft version available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=727445.

16. See, e.g., Brian Leiter, "Naturalism and Naturalized Jurisprudence," in Analyzing Law, edited by Brian Bix (Oxford University Press, 1999).

17. For a more detailed articulation of this argument, see Kenneth Einar Himma, "The Instantiation Thesis and Raz’s Critique of Inclusive Positivism," Law and Philosophy 20 (January 2001): 61-79.

18. See, e.g., Scott J. Shapiro, "On Hart’s Way Out," Legal Theory 4 (December 1998): 469-508.

19. See Kenneth Einar Himma, "Final Authority to Bind with Moral Mistakes: On the Explanatory Potential of Inclusive Legal Positivism," Law and Philosophy 24 (January 2005): 1-45. For an incisive response, see Matthew H. Kramer, "Of Final Things: Morality as One of the Ultimate Determinants of Legal Validity," Law and Philosophy 24 (January 2005).

20. See Stephen Perry, "Second Order Reasons, Uncertainty, and Legal Theory," 62 Southern California Law Review 913 (1989).

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Spring 2007 Volume 06, Number 2

Spring 2007
Volume 06, Number 2