J.

RAZ
The Problem About the Nature of Law (1982)
Prepared By: Almost paradise :)

Theory of knowledge attempts to clarify the nature of knowledge; Philiosophy of logic examines the
definition of logic; Moral philosophy reflets on the nature and boundaries of morality
- the identity of such disciplines depends on the identity of their subject matter which is why preoccupation
with their own self-identity is typical of many philosophical inquiries
Philosophy of law is partly engaged in an investigation of the nature of law and of the boundary of the legal
There are three current approaches to the question of the nature of law to be discussed

I. Linguistic approach an attempt to define the meaning of the word law

philosophers have grown dissatisfied with the linguistic approach, paticularly because:
- philosophers are not lexicographers (dictionary meaning: a person who compiles dictionaries)
- it is hard to find a definition that will be applicable to all kinds of contexts of law
the word law is used in a multiplicity of non-legal contexts e.g. laws of nature and scientific laws,
laws of God and of thought, of logic and of language, etc.
explanation of law has to account for its used in all these contexts
only on one assumption can it define law: the use of law in all its contexts but one is analogical or
metaphorical or in some other way parasitical on its core meaning as displayed in its use in one type
of context and that the core meaning is the one the legal philosopher has at the centre of his inquiry
- this assumption is mistaken John Austin demonstrated its implausibility
1. there is no reason to regard discourse about purely theoretical laws (like laws of nature), as
paraisitical extentions of discourse about purely practical laws (such as legal rules)
2. when considering purely practical laws there seems no reason to give legal rules and their
special features preferred status compared with that of purely theoretical laws e.g. moral laws
even though the explanation of the meaning of the word law has little to do with legal philosophy, it is still
possible that the meaning of some other terms be closely associated with the concerns of legal philosophers
the words legal and legally can explain the nature of law
LEGALLY is a sentence-forming operator on sentences
- the claim that its semantics explains the nature of law amounts to saying that legally p is the general
form of all legal statements
- to examine the claim, one should consider the 5 types of sentences standardly used to make legal
statements:
1. It is the law that and According to law are roughly synonymous with Legally
There is a law that p is logically equivalent to Legally, there is a rule that p
2. Legal can be defined in terms of legally
x has a legal duty (or a legal right or legal authority, etc.) is logically equivalent to
Legally, x has a duty (or a right or authority, etc.)
This is a legal transaction is logically equivalent to Legally, this is a transaction
3. purely legal predicates such as a mortgage, a share, a copyright, fee simple are used
only to make legal statements. Any sentence containing a purely legal predicate should count as
a legal sentence even though it does not display the form Legally p.
Any sentence p containing a purely legal predicate is logically equivalent to legally p. For
example, he has the copyright is logically equivalent to legally he has the
copyright.

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 4. semi-legal predicates are predicates which are normally used to make statements but which
can also be used in other contexts ownership, marriage, contract
Sentences containing semi-legal predicates are not logically equivalent to the sentences
resulting from them by prefixing legally to them
Any legal statement made by the use of a sentence p containing a semi-legal predicate is
logically equivalent to the one standardly made by Legally p
5. Legal statements are often made by the use of ordinary deontic sentences where the content
of the sentence and the context of its utterence indicate that it is used to make a legal statement
(e.g. It is prohibited to park here)
When such a deontic sentence p is used to make a legal statement, the statement thus
made is logically equivalent to the one standardly made by Legally p
- what can be inferred from the 5 types of sentences are these:
1. In the first three = linguistic condition is true
a. all legal statements can be expressed by sentences having the form legally p, which
means that any theory of the nature of law must observe the Linguistic Condition (LC)
LC: All legal statements are statable by the use of sentences of the form Legally p
b. (notes from 2019 reviewer, dont know where they got these, maybe from Profs discussion) linguistic condition
is true because the sentences express what is the law example: Harts legal conclusion
(A has a right to collect from B.)
2. (notes from 2019 reviewer, dont know where they got these, maybe from Profs discussion) In the last two =
sentences may no longer refer to a legal conclusion; there is more than one use
a. I own that pencil. does not readily follow from the rules and conditions as it could mean
many things meanings that are not necessarily legal
b. Legally, p. fails
CONCLUSION: Linguistic considerations impose a constraint on the acceptability of legal theories but that the
inquiry into the nature of law is not a study of the meaning of any term or family of terms

II. Laws according to the lawyers perspective

What then is the object of such an inquiry? Many legal philosophers start from an unstated Basic Intuition
(BI)
BI: The law has to do with those considerations which it is appropriate for courts to rely upon in
justifying their decisions
It may be thought, and the thought may have influenced various philosophers, that the basic intuition is
justified by the linguistic approach (or perhaps even by LC)
- meaning, legal rules and legal facts mean the same as the considerations that it is appropriate to for
the courts rely upon however, this is contradicted by constitutional conventions in English Law
According to most standard theories of English constitutional law, one defining feature of conventions is that
they are not considerations on which courts can base their decisions if this is so, then according to the BI,
they are not legal rules
- but this conclusion cannot be supported by the linguisitic stage, since many native English speakers
would not hesitate to dub various conventions legal rules
- the case of constitutional convention is not used to refute the BI, but that, it is necessitated by the
linguistic approach
Many tended to regard BI as justified by linguistic usage, this provides a partial explanation for the willingness
to adopt BI without further questioning however, there must be additional reasons, if only to explain why
legal philosophers were so myopic in their perception of linguistic usage one simple reason is this:

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 - most theorists tend to be by education and profession lawyers and their audience often consists primarily
of students of course, they will naturally adopt the lawyers perspective on the law
lawyers activities are dominated by litigation in court, actual or potential
from the lawyers point of view, the law consist of nothing but considerations appropriate for courts to
rely upon
the lawyers perspective consists of the unquestioning acceptance of BI as the starting point for legal
philosophy and as determining its subject matter
- but it does not follow that accepting BI commits one to accepting the lawyers perspective BI need not
be accepted unquestioningly
- Kelsen can be taken as an instructive example of a philosopher who adopts the lawyers perspective
without being aware of this
Kelsen says he is following a combination of the linguistic approach and the institutional approach: any
attempt to define a concept must take for its starting point the common usage of the word denoting the concept
in question
- methodological approach: legal theory must be a pure theory
it is pure of all moral argument and it is pure of sociological facts
- purity from social facts
the analysis of legal concepts and the determination of the content of any legal system depends in
no way at all on the effects the law has on the society or economy, nor does it involve examination of
peoples motivation in obeying the law or in breaking it
law is of law in the books, of an analysis of law using as the raw material only law reports and statute
books
Kelsens two doctrines explains why he is assumed to believe in the lawyers perspective:
1. if the law consists of considerations appropriate for courts to rely upon then it is tempting to regard all
laws as addressed to courts
2. if one thinks of every law as determining the result of a (class of) potential disputes then it is tempting to
regard every law as stipulating a remedy meaning, every law stipulates a sanction but that sanction is
wide enough to cover all remedies excepting declaratory judgment
BI says that law has to do with reasons for courts decisions. It does not say that all the considerations
that courts may rely upon are legal considerations. Nor does it reject such a view.
- Kelsen rejected this: he regarded law as consisting of enacted law, case law and customary law and he
acknowledged that there are other considerations on which courts may rely, called extra-legal
considertions
Kelsens reasoning (above) has nothing to do with BI they derive from the other aspect of purity of legal
theory: its purity from moral considerations
- legal theory is free of all moral considerations which is a pre-requisite for legal theory to be scientific
but this argument is wrongWHY?
the task of legal theory is clearly to study law
if law is such that it cannot be studied scientifically then surely the conclusion must be that legal
theory is not a science
if the law does involve moral considerations and therefore cannot be studied scientifically, then legal
theory will study only those aspects of the law which can be studied scientifically
courts, in fact, do rely on moral considerations that are not incorporated in any legislation, custom or
precedent
To debunk Kelsens arguments:
1. if enacted and case law can be represented as instruction for couts to apply sanctions in certain
circumstances so can those moral consideraions which it is appropriate for courts to rely upon
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 2. if all considerations which guide courts in applying sanctions are legal considerations, why are not moral
considerations which do so part of the law even if they are not incorporated in legislation, precedent or
custom?
In America, legal theory has always been dominated by the thought that law is just what the courts do
- they believe in the lawyers perspective, concluding that all considerations which courts may use are
legal
- in particular, R.M. Dworkin developed a theory of law out of a theory of adjudication
points out that judges must use moral considerations in addition to enacted and case law
argues that the moral considerations in which they should use are those which belong to a moral
theory justifying the enacted and case law binding on them
assumes that all the considerations which courts legitimately use are legal considerations
a lawyer has to concern himself not only with legislation and precedent but also with other
considerations relevant to judicial reasoning
a lawyer, fortified in virtue of BI with the knowledge that the law has to do with judicial reasoning
finds no reason from the perspective of his own professional preoccupations to stop short of
identifying the theory of law with a theory of adjudication

III. Institutional approach

Raz: from the lawyers perspective in the disagreement between Kelsen and Dworkin, the latter must be
declared winner
- neither the BI nor the LC explain why this is so because both BI and LC are compatible with Kelsens
and Dworkins theories of law
- it is the lawyers perspective which delivers the verdict however, this is questionnable because it is
unreasonable to study such institutions exactly from the lawyers persective
their importance in society results from their interaction with other social institutions and their
centrality in the wider context of society
when one inquires into the nature of law, legal philosophy must stand back from the lawyers
perspective, not to disregard it, but in order to examine lawyers and courts in their location in
the wider perspective of social organization and political institutions generally
L.A. Hart prominent practitioner of this approach
- discusses the emergence of secondary rules and of the minimum content of natural law
- examines the law as involving the emergence of new kinds of political institutions legislative and
judicial as against the context of social and political needs
Raz: the institutional approach, subjected to the restriction of LC, seems much superior to its two
rivals
- linguistic approach though useful as imposing restrictions and suggesting insights is bound to yield
inconclusive results
- lawyers perspective though based on a sound intuition is arbitray as an ultimate starting point
the institutional approach strives to present an analysis of a central political institution which, since its
analysis conforms to LC, should be accepted as the analysis of law
- BI then is a justifiable consequence, and in this particular point of view, the disagreement between
Kelsen and Dworkin is resolved in favor of Kelsen
- WHY KELSEN?
from the institutional point of view the BI is the starting point for further critical reflection
three features characterize courts of law:
1. they deal with disputes with the aim of resolving them
2. they issue authoritative ruling which decide these disputes
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 3. in their activities they are bound to be guided, at least partly, by positivist authoritative
considerations
EXPLANATION FOR #1 FEATURE
- does not imply that courts of law do not engage in activities other than settling disputes other activities
involve: administering estates and bankruptcies, conducting the affairs of certain categories of people,
etc.
- simply means that despite of many other activities courts of law are engaged, they are courts because
they strive to settle disputes
- if compared with BI, it means that courts are crucial to our outstanding of law because they are
involved in settling disputes
- Raz does not believe in this is he states that what is crucial for the existence of law are the other
two features of law courts (features which can be and in many legal systems are shared by other,
though perhaps less important, institutions)
EXPLANATION FOR #2 FEATURE
- A courts opinion on the merits of a dispute is authoritative and binding as compared to others
not because others have an opinion on such
not because others opinions are not an experts opinion
nor because courts never err
the reason is that the courts very utterance of its opinion is claimed by it to be a reason for
following it whereas others opinion are not claimed to be a reason for following it
EXPLANATION FOR #3 FEATURE
- There are forms of arbitration in which the arbitrator is instructed merely to judge the merits of the case
and to issue a just judgment, without being bound to follow any authoritative positivist standard
positivist considerations are those the existence and content of which an be ascertained without
resort to moral argument for example, statutes and precendents
- a moral adjudicator will rely in his deliberation on the existence of positivistic standards but he is not
bound to regard them as authoritative
- one does not have a court of law unless it is bound to take positivist standards as authoritative
like, cutom, legislation or precedent
HOW CAN WE USE THIS UNDERSTANDING AS A BASE ON WHICH TO ANCHOR A COMPLETE
DOCTRINE OF THE NATURE OF LAW?
- authoritative positivist considerations, in accordance with the BI, will provide the institutional key to the
nature of law.
- thus, we can formulate an additional constraint on an adequate doctrine of the nature of law
AP: Law consists only of authoritative positivist considerations (Im guessing AP stands for
authoritative positivist?)
Raz explains AP using personal action he categorizes personal action or a persons attitude to the prospect
of a certain action in two: deliberative stage and executive stage
1. Deliberative stage
- considers the merits of alternative courses of action
- terminates when a person reaches a conclusion as to what he should do
- it is followed by an executive stage
2. Executive Stage
- starts when a person forms an intention to perform a certain act
- a person is then set to act if and when the occasion arrives
consolidating the two stages: when an intention (executive stage) is formed, deliberation will terminate
- when deliberation terminates, it can be restarted when the intention is suspended or revoked
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 - in case the intention results into a decision, there is no longer need for deliberation to be re-opened
the existence of an intention indicates that the question what to do has been settled and that the person is
now ready to act
It is not always the case where every action is preceded by both stages (deliberative and executive) or by one
of them
- but generally, their distinctions are both important because
deliberative stage is necessary for people to be able to form considered views on the merits of
alternative courses of action
executive stage is necessary to enable people to plan ahead, to determine themselves to act in
advance of the occasion for the action
HOW DOES THE STAGES THEN APPLY TO INSTITUTIONS?
- for large organizations, a distinction between the stages is essential to secure planned and efficient
institutional action
stages will result to a division of responsibility between different persons some will be responsible
for deliberating and deciding, others for executing those decisions
ADDITIONAL EXPLANATIONS FOR THE TWO STAGES
1. Deliberative
questions of what is to be done is open to argument based on ALL sorts of considerations reasons of
moral character will often dominate
- when the social institution involved is satisfied with the matter that has been decided, it will then
proceed to formulate the social intention i.e. it issues an authoritative instruction
- the issuance of an authoritative instruction marks the end of the deliberative stage
2. Executive
the authoritative instruction issued at the previous stage is forwarded to the executive stage
- the instruction will be identifiable without resort to further moral argument (moral arguments by
definition belong to the former stage)
- only positivist considerations can belong to the executive stage
- executive considerations are authoritatively binding
these cannot be subjected to challenge or query their validity or conclusiveness
if one challenges these, it will re-open the deliberative process
- so long as argument is free (meaning open to challenges or queries), the executive stage has not
yet been reached
- executive considerations are therefore authoritative positivist considerations
HOW DOES THIS THEN EXPLAIN WHAT THE LAW IS?
- the definition of courts of law includes the fact that they are guided in part by authoritative
positivist considerations and that they issue authoritative rulings
- this suggests that the law consists of the authoritative positivist considerations
binding on the courts and belongs essentially to the executive stage of the political
institution (the state, the circh, etc.) of which it is a part meaning, courts apply both
legal (i.e. authoritative positivist) and non-legal considerations
- legal and non-legal considerations rely both on executive and deliberative reasons, yet the
law belongs to the executive stage only
After analyzing both stages, it suggests that the survival of a deliberative stage down to the adjudicative level
is always to be regretted (because it will never have a conclusion; it is always open to arguments; it will never
result to an action) but Raz says this is isnt true
- it is often advantageous for a person while forming a general intention in advance to leave the precise
details to the last moment
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 - when dealing with very broad categories, it is better not to fix too inflexibly the precise details in advance
it is better to settle for executive reasons, i.e. laws, which fix the framework only and leave the
courts room to apply deliberative reasons within that framework

FINAL CONCLUSION of the 3 approaches to the question of the nature of law

the law consists of authoritative positivist considerations enforceable by courts (as required by BI) not all the
considerations which meet this condition are part of the law, other conditions have to be added
- as suggested by the definition of a legal court
- as supported by the common distinction between two functions of the courts as law-makers and law-
appliers
- as supported by the fact that any analysis of law based in part on this feature focuses on a distinction of
paramount importance to social organization, i.e. the distinction between the deliberative and the
executive stages

IS LEGAL PHILOSOPHY VALUE-FREE? NO.

Lawyers perspective is an arbitrary starting point for legal philosophy
- disregards the wider political context in which the law is attached
- the inclination to identify the theory of law with a theory of adjudication and legal considerations with all
those appropriate for courts is based on a short sighted doctrine overlooking the connection of law with
the distinction between executive and deliberative considerations
WHY?
a theory of adjudication is a moral theory
- it concerns all the considerations affecting reasoning in the courts, both legal and non-legal
- in deciding which extra-legal considerations will be considered, it engages in moral arguments
so, when the doctrine of the nature of law is identified with a theory of adjudication, it becomes itself
a moral theory
- it then becomes a question of political morality in terms of extra-legal considerations
if a theory of adjudication is a theory of law, if all the considerations to be used by courts are legal
considerations, then the theory of the nature of law is a moral theory
a different conclusion will result if one follows the arguments based on the institutional approach
- since law belong to the executive stage it can be identified without resort to moral arguments, which
belong by definition to the deliberative stage
- but it does not follow that one can defend the doctrine of the nature of law itself without using
evaluative (though not necessarily moral) arguments
its justification is tied to an evaluative judgment about the relative importance of various features
of social organizations and these reflect our moral and intellectual interest and concerns

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