Raz on Authority: On the Nature of Law and Exclusive Legal Positivism

Dennis Patterson Rutgers University Law (Camden) and Philosophy (New Brunswick)

For discussion purposes only

The Morality of Freedom is one of, if not the most, important books combining legal and political theory since the publication of H.L.A. Harts seminal work The Concept of Law. Separated by 25 years, these two works articulate the fullest and subtlest accounts of law in the positivist tradition. Both books were written against the background of substantial intellectual ferment in analytic philosophy. When Hart wrote Concept, Wittgenstein and Austin reigned supreme in Oxbridge. By the time The Morality of Freedom appeared, Rawls had revived political philosophy and Quinean naturalism was firmly ensconced, at least in America, as the preferred methodology for metaphysics and epistemology. I begin with this brief look at history because I want to locate my comments on The Morality of Freedom in current disputes and controversies in analytic jurisprudence. My focus will be Razs unique and much-discussed account of authority. While controversial, Razs account of authority has been widely influential, and rightfully so. It is precise, powerful and a great advance over previous efforts. Razs account of authority implicates three distinct yet related subjects. First, his account of authority is an investigation into one aspect of practical reasoning. Second, owing to the nature of authority, Razs claims for authority implicate fundamental issues in legal theory, most directly the issue of the nature of law. Finally, and related to the question of the nature of law, Razs account of authority raises methodological questions. In my remarks, I will focus on two issues raised by Razs account of authority and claims for his view of the nature of law, Exclusive Legal Positivism (ELP). First, I

want to consider the degree to which a critical element of ELP, the Sources Thesis, confronts the need for interpretation in law. The point I wish to make is that debate about the role of evaluative criteria in the context of interpretation puts pressure on the Sources Thesis in ways that undermine claims on behalf of ELP. Second, I want to locate Razs account of authority, and the claims he makes for it, in the context of the most recent general debate in analytic jurisprudence, the methodology debate. It is in the light of this debate that I want to pursue certain questions about Razs account of authority and the claims he and others make on its behalf as a fundamental aspect of his theory of law. Razs theory of authority has always been provocative and interesting. As I hope to show, the theory is as important in contemporary debates on the nature of law as it was two decades ago.

The Service Conception of Authority Authority, on Razs view, mediates between persons and reasons. It concerns the question of when and under what circumstances one should submit to the directives of another. It is worth emphasizing, moreover, that an authority need not be a person. The law, for example, may be an authority; Raz wants to know when we can say that the law possesses authority. Before proceeding further, let me briefly summarize the main features of Razs account of the concept of authority. Following Raz, I shall refer to each of the elements as theses:

1.

The Dependence Thesis: To be authoritative, a directive must be based

on reasons which apply to the subject(s) of the directive. These reasons are dependent reasons; 2. The Normal Justification Thesis: In the usual circumstance, one is

acknowledged to have authority over another if the subject is likely better to comply with reasons which apply to him, that is, if he accepts the directives of the authority as authoritatively binding and makes a good faith effort to follow them, than if he tries to follow the (dependent) reasons which apply to him directly1; and 3. The Preemption thesis: The fact that an authority requires an action (issues

a directive) is a reason for its performance which reason (directive) is not to be added to all other relevant reasons when the addressee is deciding what to do but should replace (some of) them.

Raz on the Authority of Law Razs account of authority is an essential feature of his view of the nature of law. He maintains that the law necessarily claims to be a genuine and not merely de facto authority. And for law to fulfill the mediating role that it claims for itself, on Razs view, it must issue dictates that can be readily understood and acted upon. More specifically, people need to be able to grasp legal norms independently of their identifying and considering the (dependent) reasons for those norms. It is for this reason that Raz endorses Exclusive Legal Positivism (ELP).

Joseph Raz, The Morality of Freedom 53 (1986).

ELP rests on the view that the content of law must come from social sources alone. Raz articulates the sources thesis as follows: All law is source based. A law is sourced -based if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument. 2 On this last point -- the role of evaluative argument in law -- Raz stands a great distance from Dworkin. For Dworkin, law is evaluative all the way down. But one need not look to an anti-positivist like Dworkin for disagreement with Raz on this point. Inclusive or Soft positivists like Jules Coleman reject Razs claim regarding the essential
features of law. For Coleman, it is simply a contingent social fact whether the law of a given jurisdiction includes moral norms in its law. While there is much in the ELP picture of law to which I am attracted, I think Raz underplays the extent to which evaluation is a more central feature of law and legal practice than the ELP account of law might suggest. I think Raz is right about the role of dependent reasons in law. Law is not a practice where the grounds of law are endlessly debated. Law is successful and authoritative, at least in part, because anyone from the most sophisticated lawyer to the average citizen reading a case summary in her daily newspaper can discern why a case is decided as it is and why it still makes sense to say the judge got the law right and mean something more than the judge reached my preferred outcome or indeed the judge reached the morally correct outcome. Of course, identifying just what it means to say that a judge got the law right or wrong is the business of legal theory. Let us begin with the question How is the content of law identified? This is a question about legal methodology or legal reasoning. How is it that lawyers answer the question whether the law permits, prohibits, or allows a certain action? Consider an example.

Joseph Raz, Ethics in the Public Domain 211 (1994).

The Supreme Court of the United States takes up the question whether it is constitutionally permissible for a state to execute a minor for a capital crime?3 How is the law identified so that the directive is sufficiently well-identified to answer the question posed? Locating the US Constitution is easily accomplished. But once we locate it, what are we to do with it? How do we go about answering the question whether the states proposed action is constitutionally permissible? And can that question be answered without resort to the dependent reasons the Constitution was meant to displace? No one would dispute that any answer to the question must begin with the text of the 8th Amendment to the US Constitution, specifically the clause that prohibits cruel and unusual punishment. While relevant, the text of the 8th Amendment is not decisive. For example, we know that the Framers and ratifiers of the Constitution themselves endorsed capital punishment. Did they intend for the practice of execution to reach minors? Take the words cruel and unusual. These words have a then-contemporary meaning: but that meaning is somewhat different today. For example, is the use of lethal injection now permitted? For that matter, is the form of execution of any moment in answering the question whether the proposed punishment is cruel and/or unusual? Executions, even of a minor, have an alleged deterrent effect. Is there any data to prove this one way or the other? Do offending minors who are spared the ultimate punishment go on to commit other crimes? Should the diversity of state interests matter in the decision whether to prohibit the execution of a minor? Is the value of pluralism with respect to the different interests of states of sufficient importance to permit execution in some states while others prohibit the practice? Are there precedents for disparate treatment of capital offenders such that we could endorse like treatment in this instance?

See Roper v Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

Finally, would it be important to decide as a matter of principle that the taking of the life of a minor is inconsistent with the American ethos? Would it not simply be apostasy for the State to take a young life, even one that has been an instrument of extreme brutality? These are the questions one must ask to answer the question of the constitutionality of capital punishment for minors convicted of a capital crime. The questions I have posed are not unusual in the slightest. To the contrary, these questions track the familiar forms of constitutional argument: historical; textual; prudential; doctrinal and ethical.4 These forms of argument constrain and shape the possibilities for answers to our query but they do not, by themselves, point in a single direction. In fact, the problem is more severe. It may well be that the forms of argument conflict in that they point in different directions. For example, historical argument may look to the intent and understanding of the framers to draw the conclusion that taking the life of a minor is constitutionally permissible. But the contemporary understanding of cruel and unusual -- or our current ethical sensibilities -may point in the opposite direction. When this occurs, interpretation of the Constitution is both warranted and necessary. I wont rehearse the full panoply of issues implicated by constitutional interpretation. I raise the issue because I want to ask how the Razian conception of authority and ELP handle questions of interpretation. Recall that a central feature of Razs conception of authority is that a legitimate authority enjoys that status because it pre-empts consideration of the dependent values it purports to replace. In this regard, recall the test Raz sets for ELP, specifically, the Sources Thesis: All law is source based. A law is sourced -based if its existence and content can

be identified by reference to social facts alone, without resort to any evaluative argument. 5

See Philip Bobbitt, Constitutional Interpretation 28 30 (1991). Raz, Ethics in the Public Domain at 211 (emphasis supplied).

It seems to me that the ELP has two problems in the interpretive context, problems that are not limited to the interpretation of constitutions. First is the problem of choosing which from among the relevant forms of argument is to be the dominant or decisive form for purposes of taking a decision. Will the historical intentions of the framers and ratifiers be central or will an argument from principle be fashioned which will prove decisive? But there is another problem or dimension to the interpretive context and that is the problem of the criteria we use to decide among competing interpretations. The Rule of Recognition dictates that the forms of argument I identified are the way in which we appraise answers to the constitutional question posed. But the rule of recognition is less clear about the criteria for deciding among competing interpretations. And here, it seems, we find the problem of evaluative criteria raised anew. Even if we accept that all law is source-based, and we further accept that the forms of argument I have identified are the means for assessing the truth value of claims made from the constitutional point-of-view, we still must face the spectre of substantive, evaluative disagreement on interpretive matters. Again, I have no problem with either the Sources Thesis or the idea that in our practice of law -- the forms of argument -- are the proper tools for assessment of constitutional claims. My claim is that in interpretive debates over which of several interpretations is deemed best, evaluative criteria (e.g., consistency, comprehensiveness, minimal mutilation) are necessarily implicated. And, if this is so, what does this mean for Razs account of authority and his claims on behalf of ELP?

At least two responses are possible. First, following Timothy Endicott, the ELP can claim that while interpretation is a pervasive feature of law, in every case it is possible to have one true interpretation.6 The second response is to argue that interpretation is not a fundamental or pervasive feature of law, that, as Andrei Marmour puts it, [i]nterpretation is the exceptional, not the standard mode of understanding language.7 Let me take the second point first. I am in complete agreement that interpretation is not the fundamental mode of argument in law. As I have argued elsewhere, this is a fatal error in Dworkins account of the nature of law.8 But one need not show that interpretation is a fundamental aspect of legal practice to sustain the need for an account of interpretation and its role in a general theory of the nature of law. With respect to the first point -- the need for an account of interpretation in law -at least two strategies are open to the ELP. First, he can argue that in every legal case, there is one true interpretation. The success of this strategy would depend upon an argument that is not yet in the arsenal of the ELP. Moreover, the argument would have to be made in such a way as not to undercut the central claim of ELP, that is, that law gains its claim to authority by precluding resort to dependent reasons. However the ELP develops his account of interpretation, that account would itself have to preclude resort to dependent reasons in just the same way the primary account of authority did; an altogether difficult task.
6

See Timothy Endicott, One True Interpretation, Analisi e Dritto (2005).

Andrei Marmour, Interpretation and Legal Theory 93 (2d ed. 2005) (http://64.233.161.104/search?q=cache:e6IARQj1NX8J:www.giuri.unige.it/intro/dipist/digita/filo/testi/anal isi_2006/08endicott.pdf+Timothy+Endicott,+%E2%80%9COne+True+Interpretation,%E2%80%9D&hl=e n&gl=us&ct=clnk&cd=3).
8

See Dennis Patterson, Law and Truth 71-98 (1996).

I shall turn now to the second of my two points today, the place of ELP in the current Methodology debate in analytic jurisprudence. As we will see, this debate raises issues of fundamental concern for all legal theorists who, like Raz, argue for a conception of law that depends, at least in part, on appeal to necessity or universality with respect to the concept of law.

The Methodology Debate: Conceptual Claims for the Nature of Law Razs account of authority, in particular his account of the nature of laws authority, is widely regarded as making conceptual claims about the nature of law. Until quite recently, the description of ones position using the word conceptual or metaphysical drew virtually no attention. This situation has recently changed. I want to first describe this situation and then ask what it might mean for Razs conception of authority and its role as a key element in ELP.
Analytic general jurisprudence has become increasingly attentive to its own methodology. No longer content with its traditional first-order questions revolving around the varieties, commitments, and defensibility of legal positivism, the discipline of jurisprudence has turned inward, asking the second-order question, How should one do jurisprudence?9 This second-order methodological question is not unrelated to jurisprudences traditional first-order concerns, to be sure, as the role of evaluation, and indeed the role of moral theorizing more specifically, figures prominently in the methodological inquiry much as it does in the first-order

See, for example, Leslie Green, General Jurisprudence: A 25th Anniversary Essay, 25 Oxford Journal of Legal Studies 575 (2005), Julie Dickson, Methodology in Jurisprudence: A Critical Survey, 10 Legal Theory 117 (2004), Julie Dickson, Evaluation in Legal Theory (2001), as well as Jules Coleman, The Practice of Principle 179 217 (2001), which is substantially reproduced as Methodology, in Jules Coleman and Scott Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law 311-51 (New York, 2002).

10

debate among positivists, interpretivists, and natural law theorists about the role that morality plays or can play as criteria of legality.

A Brief History of the Debate In The Concept of Law, Hart advanced a powerful case for legal positivism, which he characterized as descriptive jurisprudence.10 A central feature of Harts project was the clarification of legal practice through a perspicuous description of its principal features. Ronald Dworkin, the most persistent critic of legal positivism, has consistently contested the possibility of the descriptive jurisprudence that Hart envisioned. One of Dworkins central claims advanced most systematically in his magisterial 1986 book Laws Empire11 is that law is what Dworkin terms an interpretive concept. Law is an interpretive concept because to understand the concept, one needs to grasp its point or purpose.12 On Dworkins view, one of the key dimensions of law is its coerciveness, and consequently, any explication of the concept of law must be able to explain and justify this important aspect of state action.13 For Dworkin, justifying state coercion is a (if not the) fundamental task of jurisprudence. More importantly, it is an enterprise that is inescapably normative and not, pace Hart, merely descriptive. The second edition of The Concept of Law, published posthumously in 1994, contained a rich and controversial Postscript, wherein Hart maintained that he and Dworkin were engaged in different philosophical enterprises, and that both enterprises were legitimate methodologies for jurisprudence. In reply, Dworkin remained unpersuaded, maintaining that his was the only appropriate methodology for jurisprudence.14

10 11 12

H.L.A. Hart, The Concept of Law (2d ed., 1994), preface, i. Ronald Dworkin, Laws Empire (1986).

Dworkin, Id. at 190 (A conception of law must explain how what it takes to be law provides a general justification for the exercise of coercive power by the state. . . .). 13 Dworkin, ibid., 94. Ronald Dworkin, Harts Postscript and the Character of Political Philosophy, 24 Oxford Journal of Legal Studies 1 (2004). This essay is reprinted in Ronald Dworkin, Justice in Robes 140 186 (2006).
14

11

Hart, and positivists generally, have argued that description of the law without justification of the law is possible. Dworkin, as well as John Finnis15 and Stephen Perry16, have insisted that jurisprudence must necessarily engage in moral justification. Perry has argued that Harts own jurisprudential methodology, though avowedly purely descriptive, in fact incorporated both descriptive and normative elements.17 It was descriptive insofar as Hart attempted simply to describe the concept of law, but it was unavoidably normative, his own self-understanding notwithstanding, insofar as Hart sought to describe it from the perspective of those over whom the law claims authority. Put roughly, in order to explain why those subject to legal authority should respect that legal authority, as is necessary if one seeks to describe the concept of law from the perspective of those over whom the law claims authority, then it is necessary to explain what is respectable about that legal authority. Showing what is respectable about a legal authority in turn involves (at least partially) justifying that legal authority. Accordingly, Perry concluded that, in light of the inherent normativity of law the object of description Harts pure descriptivism could not stand. Harts most thorough defender has been Julie Dickson, who has argued not only that Harts methodology is not nearly as unstable as Perry makes it appear, but that Harts approach is in fact jurisprudences proper methodology.18 Dickson accepts that Hart seeks to describe the concept of law and that doing so requires taking up the internal perspective of those working with and subject to law, but she steadfastly denies Perrys claim that describing the law from the internal perspective requires justifying law. While accepting that some form of evaluation is

15

See John Finnis, Natural Law and Natural Rights 4 (1984).

16

See especially Stephen R. Perry, Harts Methodological Positivism, in Jules Coleman (ed.), Harts Postscript (2001). In addition to the above article, see, Perry, Interpretation and Methodology in Legal Theory, in Andrei Marmor (ed.), Law and Interpretation (1995); and Perry, Holmes v. Hart: The Bad Man in Legal Theory, in Steven Burton (ed.), The Path of Law and its Influence (2000). See Dickson, Evaluation in Legal Theory, supra.

17

18

12

necessary in describing law, Dickson distinguishes between moral evaluation of the kind that marks a justification, on the one hand, and non-moral evaluation, on the other. It is Dicksons view that legal theorists certainly do evaluate the data that they are trying to explicate, insofar as they are trying to explicate the significant and important data about law, and not extraneous data. Dickson moreover contends that the legal theorists evaluations must be attuned to what those persons who create, administer, and are subject to the law take to be significant and important about law. The systematization and clarification of the concept of law relies on just such theoretical evaluation. But Dickson is resolute in maintaining that evaluation of this kind is a far cry from the outright moral evaluation that Perry argues is necessary. Dicksons is an evaluativebut-not-morally-evaluative, or what she terms indirectly evaluative, jurisprudence.19

If Perry and Dickson have each staked out clear alternative positions in the methodology debate, Brian Leiter has significantly widened it by relating the debate to important developments in metaphysics and epistemology. Traditionally, jurisprudence has been concerned with a single animating question, namely, the nature of law. Until Leiters foray into the methodology debate, no one in the field questioned jurisprudences fundamental animating premise, to wit, that law had a nature capable of explication. Adverting to W.V.O. Quines famous 1951 paper, Two Dogmas of Empiricism,20 and the robust empiricism that it ushered in, Leiter maintains that the idea that concepts have a nature or necessary structure or content is mistaken, and that a priori inquiry into the concept of law the task that jurisprudence has traditionally set for itself is therefore fundamentally misguided.
Even if Quine is right, how do his arguments matter to analytic general jurisprudence?
Similarly, Jules Coleman argues: [i]t is one thing to claim that normative considerations figure in the project of identifying the features of law the theory of the concept must account for; quite another to claim that the norms to which one must appeal are those of political morality. Coleman, The Practice of Principle, n. 1 above, 199.
19

13

Dworkin, recall, maintains that laws coercive power is essential to law and that it is that power that must be justified in any explication of the concept of law. This project assumes the defensibility of some form of conceptual analysis; indeed, Dworkin couches his project in precisely those terms.21 Legal positivists, too, engage in conceptual analysis. Raz writes: In as much as a general theory of law is about the nature of law it strives to elucidate laws essential features, i.e., those features which are possessed by every legal system just in virtue of its being legal, by every legislative institution in virtue of its being legislative, by every practice of legal reasoning in virtue of its being a practice of legal reasoning, and so on. A claim to necessity is in the nature of the enterprise.22

If Quine is right,23 it would seem that neither Dworkin nor Raz can be right about methodology in legal theory. The reason is that claims to be describing the essential features of law depend for their efficacy on the analytic/synthetic distinction. If the analytic/synthetic distinction is untenable, as Quine maintains, then it would seem to follow that no project of conceptual analysis, whether Dworkinian or positivist, gets off the ground. This thumbnail sketch of the recent history and current state of play in the methodology debate is, of course, simplified. There are many more players and theses than those just discussed. At the same time, the positions staked out by Perry, Dickson, and Leiter mark clear poles in the debate, and the framework provided by their positions is therefore a useful one. As currently

Dworkin writes, [e]ach conception [of law] furnishes connected answers to three questions posed by the concept. First, is the supposed link between law and coercion justified at all? Is there any point in requiring public force to be used only in ways conforming to rights and responsibilities that flow from past political decisions? Second, if there is such a point, what is it? Third, what reading of flow from what notion of consistency with past decisions best serves it? Dworkin, Laws Empire, supra note 13 at 94.
22

21

Joseph Raz, On the Nature of Law, 82 Archi fr Rechts- und Sozialphilosophie 1, 2 (1996). It is worth noting that Raz explicitly states, I will leave the question of the kind of necessity involved unexplored. Id. But see Paul Grice & P.F. Strawson, In Defense of a Dogma 65 Philosophical Review 141-58 (1956), reprinted in Paul Grice, Studies in the Way of Words (Cambridge, MA, 1989) 196-212.

23

14

structured, the methodology debate within analytic jurisprudence joins wider debates in the philosophy of language, epistemology and metaphysics. Where do we locate Raz in the methodology debate? Vis--vis the Methodology debate, the simplest way to ask the question with respect to ELP is what type of claim is Raz making on behalf of the service conception of authority and, thus, ELP? Although some read him as making a moral argument,24 I think the more accurate characterization is that the claim is conceptual or metaphysical.25 Raz himself has been somewhat equivocal on the matter, sometimes speaking of the concept of authority, our concept of authority or, more recently, concept(s) of authority.26 Let us consider Razs position from the point of view of the Quinean critique of conceptual claims. Rejecting claims to analyticity means rejecting all claims about the nature of the concept in question, in this case, law. There are no viable analytical, conceptual or necessity claims when it comes to our concepts. When we give an account of concepts like law, the most we can be said to be doing is what Leiter disparagingly refers to as glorified lexicography. Is Raz doing glorified lexicography? I dont think so. Well, what then is he doing?

I believe that what Raz needs to answer the question of the nature of law is a general theory of concepts. To answer the question of the nature of law we need to know what sort of concept law is. Once we have answered this question, we can move on the question of what sort of conceptual analysis is necessary for a concept like law.

24

See Stephen Perry, Harts Methodological Positivism, at 352. Coleman at 124 and 127.

25

Raz explores these tensions most recently in Joseph Raz, Can There be a Theory of Law? in The Blackwell Guide to the Philosophy of Law and Legal Theory 324 342 (Golding and Edmundson eds., 2005) and Joseph Raz, The Problem of Authority: Revisiting the Service Conception, 90 Minn. L. Rev. 1003 (2006).

26

15

In short, a theory of concepts is a necessary preliminary to answering the question what is the nature of law? The conventional metaphysical wisdom is that concepts divide up into at least two categories: natural kind concepts and artefactual kinds. Natural kind concepts are those whose essence is dictated by a microstructural element such as atomic formula or DNA. Artefactual kinds are the product of human invention. These social constructs are the stuff of John Searles Institutional Facts: their existence depends upon our attitudes or intentions.27 Where does Razs account of the nature of law fall into this divide? It is not at all clear. On the one hand, Raz, says this about the nature of law: A theory consists of necessary truths, for only necessary truths about the law reveal the nature of law.28 But Raz also maintains that In large measure what we study when we study the nature of law is the nature of our own self-understanding.29 It is difficult to see how necessary truths can arise out of the self-understanding of participants in a practice. Raz seems to want an account of the nature of law that identifies necessary truths at the same time it identifies something seemingly contingent about law (ie, our self-understanding of it). Putting together necessity and contingency seems to me to be the next step in the development of ELP. This is, perhaps, one lesson of the current Methodology debate. However Raz cashes out his claims for ELP and the nature of law, his account of authority will surely be a permanent fixture in the landscape of jurisprudence. In my

27

See John Searle, The Construction of Social Reality 31 57 (1995).

28

Joseph Raz, Can There be a Theory of Law?, in The Blackwell Guide to the Philosophy of Law and Legal Theory at 328. Id. at 331.

29

16

remarks today, I have sought only to raise a few questions about Razs unique and thoroughly original account of authority. Right or wrong, no one who considers either authority or the nature of law can do so without due consideration of Razs position and the claims he makes on behalf of ELP.

17