Law as Authority Flashcards
Bix, Chapter 12 “Authority, Finality and Mistake”
Holmes
What is meant by law?
“the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law” (The Path of the Law).
Bix, Chapter 12 “Authority, Finality and Mistake
On Raz’s theory of authority
1º Paradox of authority:
- If authority tells you to do the right thing, then authority adds nothing because you should do the right thing regardless of what authority tells you
- If authority tells you to do the wrong thing, then you shouldn’t do it because it’s the wrong thing
- Therefore, authority adds nothing – following authority is inherently irrational.
Bix, Chapter 12 “Authority, Finality and Mistake
On Raz’s theory of authority
2º Hobbes
2º Hobbes believes that there is a second order justification for complying with authority: a world without any political authority (a state of nature) is worse even than living under the authority of a tyrant, as long as this tyrant does not engage in the wanton murder of his subjects. The monopolisation of force under an authority is better than the alternative of anarchy.
Bix, Chapter 12 “Authority, Finality and Mistake
On Raz’s theory of authority
3º Raz aims to avoid both ways of thinking:
I – Raz’s theory of authority
- theoretical authority
- how is this linked to the rationality of following practical authorities like the law?
3, what is the analogy between Dr. and legislator?
- what is the normal justification thesis?
- He begins by considering theoretical authority (a person who is an authority in respect of some kind of knowledge): rational for you to listen to a doctor and believe what he says about your condition because he has a better understanding of the facts – listening to him serves your interests.
- This is the service conception of authority with which Raz explains the rationality of following practical authorities like the law
- A doctor mediates between you and the facts – he gives you a prescription instead of a lesson in medicine. The legislature, too, passes a law that everyone must follow after considering all the reasons.
- This is the normal justification thesis: an authority is legitimate if you are more likely to act correctly on the balance of reasons that apply to you if you follow the directives of the authority than if you act on your own assessments of the balance of reasons.
Bix, Chapter 12 “Authority, Finality and Mistake
On Raz’s theory of authority
3º Raz aims to avoid both ways of thinking:
II – Raz’s authority of law
what is the law’s most important role?
- The law’s most important role is to solve coordination problems (ex. driving on the left of the road, taxation), even in areas that seem far removed from coordination, ex. the criminal justice system – it doesn’t merely enforce pre-existing moral norms, but coordinates a community’s response to crime so as to deal with it in the best possible way.
Bix, Chapter 12 “Authority, Finality and Mistake
On Raz’s theory of authority
3º Raz aims to avoid both ways of thinking:
III – Raz’s critique of Dworkin’s theory and soft positivism
- Raz’s claim re legal systems claiming to be authorities?
- what does Dworkin think must be done to determine hard cases?
- What does hard positivism posit?
- what does soft positivism posit?
- why is requiring moral investigation to determine the content of the law incompatible with the law serving as an authority?
- what is Dworkin’s response to Raz?
- Raz claims that all legal systems claim to be authorities, i.e. they require compliance with their edicts and claim that they do so legitimately. He believes that this undermines Dworkin’s theory and soft positivism:
- Dworkin thinks that in order to determine whether a law is valid, particularly in hard cases, will require assessing the moral quality of it in light of a defensible moral-political theory of the law of that jurisdiction
- Hard positivism posits that the law is determined by something like a rule of recognition, which identifies the law on the basis of social facts such as whether Parliament passed an Act containing the law
- Soft positivism holds that though a legal system need not incorporate in its rule of recognition any moral criteria for legal validity, it may do so (ex. if a Bill of Rights introduced a requirement of fair procedure, then what the law is will depend on what the morality of fairness requires)
- Raz argues that requiring moral investigation to determine the content of the law is incompatible with the law serving as an authority, because an authority must tell its subjects what they are required to do in more or less certain terms, i.e. mediate between the reasons that apply to the subject’s case and the subject himself, telling the subject what to do (executive stage of practical reason) rather than to figure out what to do himself taking into consideration the relevant facts and moral considerations (the deliberative stage of practical reason). To so so is to abdicate authority in that area of human activity.
- Dworkin replies that Raz’s conception of “authority” is too narrow – such a broad directive as “act honestly and fairly” can be authoritative in that the recipient can alter his behaviour in an attempt to conform with it, whatever it may require.
Bix, Chapter 12 “Authority, Finality and Mistake
On Bentham and Austin’s Command Theory
- what is Bentham’s definition of the law?
- how is his view more complex than might first appear?
3, why might reference to command be obvious?
- Bentham’s definition of law is often summarized as “the command of a sovereign backed by threats” but this is unduly simplified:
- he defines law as “an assemblage of signs declarative of a volition … adopted by the sovereign in a state, concerning the conduct to be observed … by … persons … supposed to be subject to his power, … trusting for its accomplishment to the expectation of certain events … the prospect of which it is intended should act as a motive upon those whose conduct is in question”.
- There are elements of command, sovereignty and sanction. On the surface this seems obvious: laws are imperatively expressed and both prescriptive and normative in their effect.
Bix, Chapter 12 “Authority, Finality and Mistake
On Bentham and Austin’s Command Theory
I - Command
- principal difficulty with the literality from which the concept is take?
- what is the relevance of the commands stemming from dead people and whether they are law or not?
- relevance of delegated nature of some law
- how does Bentham justify this?
- what is Hart’s criticism?
- Principal difficulty is the literality with which the concept is taken, the personalized form in which the “command” is taken to be in.
- Laws commanded by dead members of the Sovereign are nevertheless law though apparently not commanded by the present sovereign (e.g. literally in dictatorial states when dictator dies, and in metaphorical sense when new government comes into power but laws remain i.e. reform to the judiciary abolishing HL in New Labour reforms + devolution etc.)
- Some laws are made on a delegated basis (judicial precedent and appointed competences).
- Bentham explains these as acts of “adoption” and tacit command – “susception” (where the mandate has already been issued) by not repealing and “pre-adoption” (where the mandate has not yet been issued) of future acts of subsidiary bodies through authorization.
- Hart’s criticism: legislation is a process the products of which are identified according to criteria of recognition without need for “adoption”.
Also, not all laws are orders: some are facilitative (ex. contracts).
Bix, Chapter 12 “Authority, Finality and Mistake
On Bentham and Austin’s Command Theory
II – Sovereign
- What is Bentham’s idea of a sovereign?
- What is the relevance of habit/obedience?
- can the sovereign be subject to another sovereign?
- How does Austin describe constitutional laws which seek to limit sovereign powers?
- What is Bentham’s more flexible approach?
- What is a problem with this analysis?
- Bentham wasn’t concerned with a “right to rule” – his idea of the sovereign is the fact of rulership. He defines it as “any person or assemblage of persons to whose will a whole political community are (no matter on what account) supposed to be in a disposition to pay obedience: and that in preference to the will of any other person”.
- The factual (or supposed) habit of obedience is key – not the cause.
- Bentham adds that a sovereign must not be subject to any other sovereign (though its powers may be subject to political and practical limitations): its power is “incapable of legal limitation”.
(so MSs not sovereign in light of EU? So EU not sovereign in light of the principle of conferral and accompanying principles of subsidiarity and proportionality? Perhaps Bentham would have replied that we have different sovereigns depending on the subject matter of competence i.e. is it shared competence with EU, where MSs only have sovereignty in so far as it doesn’t encroach on competence of EU? if so then the EU is sovereign. By contrast, in areas of ‘supportive competence, then MSs are sovereign.) - For Austin, constitutional laws that seek to limit sovereign powers are thus mere “guides”, a form of “positive morality” and not “laws properly so called”
- Bentham adopted a more flexible approach that allows limitations through a “transcendant law” (a sort of self-denying ordinance by the sovereign) such as an “express convention” (i.e. “where one state, has, upon terms, submitted itself to the government of another: or where the governing bodies of a number of states agree to take directions in certain specified cases, from some body or other that is distinct from all of them”)
- Much of the problem with this analysis is the personification of “sovereign”, the analogy between a sovereign and an individual, ignoring the fact that sovereignty is an expression of a process that is part of the legal order: the lack of distinction between the authoritative process and pure imperation is a great lacuna addressed in the revised positivism of Hart.
Bix, Chapter 12 “Authority, Finality and Mistake
On Bentham and Austin’s Command Theory
III – Sanctions
- How does Bentham see the obligation to obey the law?
- How does he divide the political consequences of disobedience?
- Why is this a probabilistic concept of obligation?
- who imposes the consequence?
- What distinction did Austin make?
- Does he accept positive notion of sanction?
- How does this notion of punishment fit in with the example of setting up a will?
- How are the requirements better regarded?
- Thus, what does Austin fail to expose?
- Bentham sees the obligation to obey law as consisting of simply the anticipation of political consequences (imposed by the sovereign) attached to non-compliance or (to a lesser extent) compliance:
- he divides these consequences into coercive sanctions (threaten an unpleasant consequence in case of disobedience) and alluring sanctions (beneficial consequences in case of compliance).
- This is a probabilistic concept of obligation as there is no certainty that a given sanction will be effective in a given case; the motivation acts through the expectation of entailed consequences rather than through the certainty of them
- The consequence is itself imposed by the sovereign
- Austin didn’t make this distinction: “it is the power and the purpose of inflicting eventual evil, and not … of imparting eventual good, which gives to the expression of a wish the name of a command”.
- He accepts that a promised reward may be a motive for compliance, but if law is to be categorised as “command”, then the sanction must be negative.
- Within the command theory, this is not negligible, but the problem is that it doesn’t fit in a lot of places, ex. Austin says that the formality requirements for making a will is accompanied by the negative sanction of failure of the will if not complied with, but this analysis doesn’t fit because the people who are “punished” is not the testator but the innocent beneficiaries.
- As such, the requirements are “instructions” for attaining a given objective, i.e. the disposal of property after death.
- Thus, Austin fails to expose the facilitative side of the law: the person who fails to follow formality requirements in making a will is not fully punished, but merely fails effectively to take advantage of the recognized facility offered and guaranteed by the state.
Introduction to law as authority
- What does Raz argue?
- What is the similarity between Raz and Hart?
- What is Raz’s example of a society of angels meant to show?
- What is the central facet of law which characterises it?
- Joseph Raz argues that the law claims to have authority and that this a defining characteristic of a legal system.
- Like Hart, he rejects the ‘command theory’ of Jeremy Bentham and John Austin, who argued that coercion is a necessary part of law and the ground of legal obligation.
- For Raz a legal system could exist entirely without coercion in a ‘society of angels’.
- Thus, for Raz it is necessary that law claims authority but not that it makes threats, whereas for Bentham it is necessary that law makes threats but not that it claims authority.
Background reading
T. Endicott, ‘Interpretation, Jurisdiction, and the Authority of Law’, 6 Am. Phil. Ass’n Newsletter on Law and Philosophy (2007)
Raz on authority
Raz thinks that authority “includes the capacity to direct people’s conduct to the exclusion of considerations that would otherwise be good reasons for action”.
Background reading
T. Endicott, ‘Interpretation, Jurisdiction, and the Authority of Law’, 6 Am. Phil. Ass’n Newsletter on Law and Philosophy (2007)
I – Authority and autonomy
- Is authority in conflict with autonomy?
- what is the law’s authority for Raz? what does it include?
- Is Raz’s conception consistent with autonomy?
(a) why it may not be
(b) why it may be
- scope
- jurisdiction
- parallel with medical law
I – Authority and autonomy
- Endicott argues that it is not, that authority can serve autonomy, because autonomous judgment is needed to determine the jurisdiction of an authority and to determine the exclusionary scope of its directives.
- For Raz, the law’s authority is a “protected reason” – it includes a reason to act in the way the law prescribes, and an “exclusionary” reason not to act on the reasons that go against it. It doesn’t simply add reasons to the balance.
- Is this consistent with
autonomy?
(a) You may say no because of both jurisdiction (the law’s capacity to exclude considerations that would otherwise be genuinely relevant), and scope (a particular directive specifically detracts from autonomy by excluding relevant considerations).
(b) But neither need be universal: authority necessarily violates autonomy only if we exaggerate the generality of one or both of these features.
- Scope: According to Raz, “exclusionary reasons may vary in scope; they may exclude all or only some of the reasons which apply to certain practical problems”. The law may specifically tell you what considerations to exclude (ex. if your mother tells you not to leave the house to play with Steve), but if it doesn’t (ex. if she just said “stay in the house”) it would be absurd to thereby conclude that the law intended to exclude all other considerations, or to give you a conclusive reason (ex. if the house burst into flames you should obviously still leave). So how should you interpret directives? This is not a question of what your mother said or intended, but what to make of the fact that she directed you to stay in the house – the effect of what she did, the purpose over which she exercised authority over you. You can’t go outside simply because, without her directive, there’d be good reason to do so, but on the other hand you can’t stay in the house if it goes against the purpose of the exercise of authority.
- Jurisdiction: if your mother specifically excludes the emergency consideration (“stay in the house even if it catches on fire”) then she acted outside her jurisdiction, by claiming authority to exclude a consideration. But then what considerations can she authoritatively exclude? This is a question of the justification of authority – Raz’s “normal justification thesis” says that a criterion for justification is that the subject can “better conform to reasons that apply to him anyway” by using the authority’s directives as a guide. But it’s dangerous to generalize about the jurisdiction of authorities (we can’t even say that authority cannot exclude emergency considerations). Nevertheless, we can say that an authority has the widest jurisdiction for which the normal justification thesis is satisfied.
Further, a parallel can be drawn with autonomy in medical law. Herring has argued that giving giving a patient all the information may in fact curtail their autonomy, as they fail to sort through the important facts from the less important ones. Thus, limiting the information given to the patient, though seemingly limiting autonomy, in fact enhances it. Similarly, the law’s authoritativeness perhaps enables us to invest more time and energy into activities which are of greater importance to our lives, without having to coordinate our activities with those around us i.e. which side of the road to drive on, ensuring that the individual we are interacting with shares our moral view with regards to stealing our property etc.
Background reading
T. Endicott, ‘Interpretation, Jurisdiction, and the Authority of Law’, 6 Am. Phil. Ass’n Newsletter on Law and Philosophy (2007)
I – Authority and autonomy
- what happens if you accept authority?
- Must authority be justified? Raz
- Is being subject to the authority necessarily contrary to autonomy?
- reasons as to why it is not
- If you accept the legitimacy of an authority, you are committed to following it blindly, save to the extent of being sensitive to the presence of non-excluded considerations and the possibility of overstepping its authority?
- Acceptance of authority has to be justified, and this normally means meeting the conditions in the justification thesis (Raz)
Endicott says it’s both, and as such, by subjecting to authority, you need not, on Raz’s account, amount to abandoning your autonomy because you need to assess: - whether the source of the directive has legitimate authority
- the authority’s jurisdiction (and of whether the directive is within that jurisdiction)
- the scope of the directive (i.e., the range of reasons excluded by the directive)
- the import of any unexcluded reasons (and how to resolve any conflict between them and the directive)
- whether an exclusionary reason is defeated by another second-order reason.
Thus, merely subjecting oneself to the law is not abandoning your autonomy – but does law claim an authority incompatible with autonomy?
Background reading
T. Endicott, ‘Interpretation, Jurisdiction, and the Authority of Law’, 6 Am. Phil. Ass’n Newsletter on Law and Philosophy (2007)
II – The extent of the law’s claim to authority
Raz thinks that law claims unlimited authority; Endicott argues that though law may not acknowledge limits to its authority, it need not claim unlimited authority either: it claims an unspecified jurisdiction, and its directives may have unspecific exclusionary scope.
Does law necessarily violate autonomy? What is law claiming when it claims authority?
All legal systems purport not only to require or to prohibit conduct but to regulate the life of a community—to impose a normative order. As such, Raz thinks that the law’s claim to authority is unlimited; but according to Endicott, the law claims merely an unspecified jurisdiction, and legal directives often have an unspecific exclusionary force (like your mother).
Background reading
T. Endicott, ‘Interpretation, Jurisdiction, and the Authority of Law’, 6 Am. Phil. Ass’n Newsletter on Law and Philosophy (2007)
III – Conclusion: can people be autonomous if they are subject to the authority of law? (Yes)
Endicott thinks that laws often violate autonomy, but nothing in the nature of law violates autonomy; its artificial, systematic nature creates a risk that the law of a particular system will do so.
J. Finnis, ‘Law as Co-ordination’ (1989) 2 Ratio Juris 99
intro
Law’s authority is explained by law’s function as providing solutions to co-ordination problems (not in the game-theoretical sense, but in the legal sense, the difference being that in legal co-ordination problems, the solution, once identified, is relatively stable, for it is preferred by all to the absence of a solution; game-theoretical co-ordination problems are presented in fully bounded situations and transitive rankings, in that the ranking of a real-life action x will depend on different and competing factors that are not commensurable apart from particular scales of assessment that one chooses to adopt and employ).
J. Finnis, ‘Law as Co-ordination’ (1989) 2 Ratio Juris 99
According to Finnis, the law makes itself salient in identifying and solving particular co-ordinating problems not by the merits of its particular solutions, but by having the features characteristic of the law:
1) It presents itself as a seamless web by forbidding its subjects to pick and choose
2) The procedural features of law give reason for regarding it as authoritative in identifying and solving co-ordination problems
Therefore, the legal order generates a shared interest which gives everyone moral reason to collaborate with the law’s co-ordination solutions (i.e. to regard it as morally authoritative) – this shared interest being in the regular, impartial upholding of the law itself.
J. Finnis, ‘Law as Co-ordination’ (1989) 2 Ratio Juris 99
Raz’s reply
Finnis reply
Conclusion §§§§§§§
Raz replies that this is an oversimplification, for individuals who understand the situation will on occasion have no reason to conform to legal requirements that are ill-suited to the goal of the co-ordination, and since some breaches will never become known or otherwise will violate the interest of the individual only, this non-conformity will not threaten the effectiveness of government and the law.
Finnis replies: the point of the law is not merely to ensure the survival of government or the future conformity of the potentially recalcitrant; it also maintains real (not merely apparent) between members of a community, and this is unaffected by the detection or covertness of breaches.
In conclusion: generally speaking, an individual acts most appropriately for the common good not by trying to estimate the needs of the community “at large,” nor by second-guessing the judgments of those who are directly responsible for the common good, but by performing his particular undertakings and fulfilling his other responsibilities to the ascertained individuals who have contractual or other rights correlative to his duties. For the common good simply is the good of individuals living together and depending upon one another in ways that tend to favour the well-being of each.
G. Lamond, ‘Coercion and the Nature of Law’ (2001) 7 Legal Theory 35
intro
Argues that the claim that law is necessarily coercive because it must be efficacious is mistaken—not necessarily on sociological or psychological grounds, but because it identifies law with the preconditions for its existence. On the other hand, the argument that law’s normativity is inherently linked to coercion contains an important truth—not because coercion is necessary to account for normativity, but because the scope of law’s claim to authority encompasses the right to authorize the use of coercion.
Hart’s critique of the command theory is that coercion is not the key to understanding law and legal systems (so you should shift the focus to law’s institutional and nromative structures), not that legal systems are not coercive. Indeed the argument that coercion is not in the nature of law is a minority position.
What is meant by the claim that the law is inherently coercive?
1) Legal systems contain enforcement institutions (police etc.) subsidiary, not addressed here
2) The law authorizes the use of physical force (forcible arrest and detention, seizure of property)
3) The law prescribes sanctions for breaches of various laws
Do the second and third features make the law coercive?
- They automatically do, because saying that law is coercive is a shorthand of alluding to these two features
- Or you must assess the claim against the best account of the nature of coercion.
G. Lamond, ‘Coercion and the Nature of Law’ (2001) 7 Legal Theory 35
I – What is coercion?
The core notion of coercion is “of one person’s forcing or making another do as the former wills, through bringing pressure to bear on the latter”, the pressure being physical force or the prosect of some disadvantage being imposed (i.e. a forced choice, because the choice situation is imposed by another and the system is designed so that only one option is regarded as acceptable)
Beyond this, opinions differ:
- Coercion involves any use of pressure that is sufficient in the circumstances to make someone do what he would not otherwise do, and is deliberately imposed for that purpose – the emphasis is on the deliberate interference with the person or threat to deliberate damage their interests
- More restricted view: one is only “coerced” when, in addition, the pressure involves the actual or threatened violation of one’s rights – the emphasis is on whether this interference violates their rights
This article will assume the first view because 1) some think that people can be wronged in ways additional to having their rights violated and 2) it doesn’t requrie an account of what rights people have.
Note that it is the provision for the enforcement of the sanction that renders it coercive, not the sanction itself.
G. Lamond, ‘Coercion and the Nature of Law’ (2001) 7 Legal Theory 35
II – The connection between authority and coercion
The legal system claims to have practical authority over a community. It claims the right to impose duties, confer rights, grant powers, authorize actions, and create institutions: to alter the normative position of those subject to it.
What does it mean to say that the law “claims” authority? The personification of the law in this way refers to the attitudes and expressions of legal organs (legislators and judges), who claim that it is wrong to refuse to comply with the law. Legal reasons purport to be good reasons for action because of the supposed validity of a legal system’s claim to authority.
Duty-imposing laws are designed to provide prudential reasons; sanctions are merely ancillary features that provide reasons for those who don’t accept the law’s authority (at least to pass laws of the kind in issue) and those led by other reasons not to conform.
What is the link between the law’s claim to authority and coercion?
- Coercion is not necessary for authority: thinking otherwise confuses the nature of authority. The possession of authority certainly depends in part on efficacy, but efficacy is not being able to force others to comply with one’s bidding. Authority is a form of social power, but social power involves the ability to alter others’ behavior when one chooses to do so – coercion is simply one way to do so (others include loyalty).
- The connection is this: Law does not merely claim the right to alter its subjects’ normative positions; it also claims the right to authorize the enforcement of these alterations. Law claims not merely normative authority but also coercive authority. Law claims the right to back up its directives with force.
So, the link between the legal system and coercion is not constitutive—it is not that coercion is a necessary component of law’s efficacy or its authority—but rather justificatory: Law claims the right to reinforce its directives with coercive measures.
The distinctiveness about law is not that it claims authority (many people claim authority: employers, unions, political parties), but that it claims a particular kind of authority: an indeterminate authority over a community, i.e. an authority that is not restricted to any particular subject matter but extends to all aspects of life in a community.
Law claims to regulate coercion, but it claims the right to regulate many other matters as well. Hence, it is no more than a consequence of the scope of the law’s claims to authority that it claims the right to authorize the coercive enforcement of its directives.
But the claim of a right to regulate coercion doesn’t in itself render the law coercive – this depends on the circumstances prevailing in a particular system (ex. the likelihood of the threat of cercion arising).
G. Lamond, ‘Coercion and the Nature of Law’ (2001) 7 Legal Theory 35
III – Conclusion
Law and coercion are inherently linked, but it is not that coercion is necessary to account for the efficacy of law, but rather that, in our current conception of law, the right to regulate coercion lies within the scope of the law’s distinctive claim to authority [whether this current conception needs to be changed is not addressed in this article]
Coercion is not the most salient aspect of law, and thinking of it this way can obscure other conditions that play a role in maintaining a legal system’s efficacy, and the various ways in which law alters human behaviour, or even lead to the assumption that a legal system can be sustained through coercion alone without ex. the promise of benefits or a widespread belief in the necessity of being guided by law’s decisions.
It is easy to exaggerate the role of coercion in maintaining the efficacy of the legal system, and to overestimate its capacity to sustain efficacy. The law is only a part of social life, and can only function (let alone flourish) under certain social conditions – the cercive support that the law may need could come from outside it.
Nonetheless, law is coercive in the sense that the scope of the law’s claim to authority encompasses the use of coercion. The link between law and coercion is ultimately normative rather than constitutive. Law claims the right to regulate the use of coercion in social life, including the use of coercion to enforce its own directives. And this claim is merely a consequence of its claim to be entitled to regulate the totality of community life.
Green, ‘Legal Obligation and Authority’, in The Stanford Encyclopedia of Philosophy, intro, s 1
- All legal systems recognize, create, vary and enforce obligations, which are central to the social role of law. Explaining them is necessary to understand the law’s authority and nature.
- Voluntarists vs non-voluntarist
Bentham and Kelsen
Hart and Raz
- Voluntarists: obligation to obey the law requires a voluntary subjection to the law’s rule (eg. consent) while non-voluntarists insist that the value of a just and effective legal system is sufficient to validate law’s claims
- Bentham and Kelsen argue that the content of legal systems should be represented solely in terms of duty-imposing and duty excepting laws, even though some laws are for the purpose of conferring rights, and duty-imposing laws are sometimes phrased differently (‘it is an offence to…’).
- Hart and Raz argue that doing so would be uninformative and unmotivated, and conceal the different social functions that laws fulfil.
Green, ‘Legal Obligation and Authority’, in The Stanford Encyclopedia of Philosophy, intro, s 1
- Legal obligations are requirements with which law’s subjects are bound to conform, that are rendered non-optional. But what are legal obligations?
- Non-optional doesn’t mean physical compulsion, or lack of eligible alternatives (people sometimes consciously consider whether to follow the law) – so can obligations just be weighty reasons to perform?
- 1.1. Not sufficient: high courts have important reasons not to reverse themselves too often, but no legal obligation
- 1.2. Not necessary: one has an obligation (but only trivial reason) not to tread on someone’s lawn without their consent
- So content doesn’t account for stringency of obligations – does penalty?
- 2.1. Hobbes, Bentham and Austin say that legal obligation requires an expression of will and attached risk of suffering an evil for non-compliance
- 2.2. Kelsen said that what is normally counted as the content of a legal duty is really just a triggering condition for the mandatory norm that commands/authorizes officials to impose sanctions
- 2.3. Hart rejected both:
- 2.3.1. They misleadingly represent a range of disparate legal consequences (eg. compensation/invalidation) as if they all functioned as penalties
- 2.3.2. They don’t account for other references to ‘duty’ without legal obligation (eg. duty of highest court to apply the law)
- 2.3.3. They don’t adequately explain non-optionality (‘you shouldn’t murder’ is not the same as ‘if you murder you will go to jail’ – the law isn’t indifferent as to murdering + going to jail and not murdering at all)
- 2.3.3.1. “The right to disobey the law is not obtainable by the payment of a penalty or a license fee” (Francome v Mirror Group Newspapers)
- 2.3.3.2. Function of penalties is to reinforce duties, not constitute them (legal sanctions is only one of many reasons why people care about their legal duties)
- 2.4. Hart said that people have an obligation to perform only when subject to a practiced social rule requiring an act or omission (though sanctions might oblige them to do something) – the fact that subjects use it as a rule marks it as normative
- 2.4.1. Features of obligation-imposing rules:
- 2.4.1.1. Reinforced by serious or insistent pressure to conform
- 2.4.1.2. Believed important to social life/some valued aspect of it
- 2.4.1.3. Their requirements may conflict with interests/goals of subject
- 2.4.2. Objections:
- 2.4.2.1. People often speak of obligations when they are aware that no relevant social practices exist (lone vegetarian in meat eating society) [MI: But do these really exist? In China you simply don’t have vegetarians, and a lone vegetarian simply would find an obligation to stand by their life choices, which is common to all.]
- 2.5. Raz said that what constitutes obligations is not the social resources for their enforcement, or the practices in which they may be expressed, but the kind of reasons for action that they offer. Legal reasons are content-independent, pre-emptive (require subjects to set aside their own view) and categorical.
- 2.5.1. Theory doesn’t assume that all legal obligations are morally binding, but that they are put forward as such by legal systems (though Hart disagrees 1982, 263-7)
- 2.5.2. Objection: is it ever reasonable to exclude entirely from consideration an otherwise valid reason? (Finnis 1979, 231-59)
Wallace, ‘Practical Reason’ in Stanford Encyclopedia of Philosophy, intro, s 1
Practical reason
- Practical reason = general human capacity for resolving, through reflection, what one is to do. It contrasts with theoretical reason because the latter leads to mental states (gives reasons for what one ought to believe) whereas the former leads to certain courses of action.
- Our capacity for deliberative self-determination raises a philosophical problem addressed here: how can deliberation succeed in being practical in its issue? What do we need to assume—both about agents and about the processes of reasoning they engage in—to make sense of the fact that deliberative reflection can directly give rise to action?
- What are the characteristics of the practical point of view?
- One way to contrast theoretical and practical reason:
- 1.1. Theoretical questions can be understood as questions of explanation (asking why events have occurred) and prediction (asking what might happen in the future). Concerned with matters of fact and their explanation, and treats these issues in impersonal terms that are accessible (in principle) to anyone. Examples are natural and social sciences.
- 1.2. Practical reason takes a distinctively normative question as its starting point – asking what one ought to do of a set of alternatives for action that haven’t been performed. Concerned with matters of value not fact (what it would be desirable to do). Agents attempt to assess and weigh their reasons for action, from a distinctively first-personal point of view, defined in terms of a practical predicament in which they find ourselves (either individually or collectively).
- A different way of contrasting, stressing the parallels rather than the differences: Theoretical reflection too is concerned with a normative rather than a factual question, namely with the question of what one ought to believe by weighing reasons for and against belief, from a first-personal standpoint. Seen in this way, the contrast between practical and theoretical reason is essentially a contrast between two different systems of norms: those for the regulation of action on the one hand, and those for the regulation of belief on the other.
- 2.1. Difference 1: truth vs desirability
- 2.1.1. Theoretical reason involves reflection with an eye to the truth of propositions, and the reasons for belief in which it deals are considerations that speak in favor of such propositions’ being true, or worthy of acceptance.
- 2.1.2. Practical reason is concerned not with the truth of propositions but with the desirability or value of actions. The reasons in which it deals are considerations that speak in favor of particular actions being good, or worthy of performance in some way.
- 2.2. Difference 2: consequences. Though both alter our attitude, one alters our beliefs and the other our intentions
- 2.2.1. Theoretical reflection produces changes in one’s overall set of beliefs
- 2.2.2. Practical reason gives rise to action, modifying our intentions, insofar as the subject is rational (because otherwise, a person might end up doing x even though one acknowledges that y is called for by the considerations one has reflected on)
*Raz, Practical Reason and Norms (1975) 35-48
there are first-order and second-order reasons.
- We are used to conceptualizing conflicts in one way, in that they are resolved by the relative weight/strength of the conflicting reasons. However, to arrive at a logical theory of practical conflicts, we must recognized that not all conflicts are of the same type: there are first-order and second-order reasons.
- If we rely on an intuitive grasp of which reasons are stronger than the others, then we need not differentiate between first and second order, and as such philosophers don’t usually discuss them. But relying on intuition is premised on accepting the principle:
- Principle: one ought always do, all things considered, whatever one ought to do on the balance of reasons. This principle doesn’t always apply:
- 2.1. X has an offer that she must accept by midnight, and it has lots of advantages and drawbacks. She is however too tired to make a rational decision, because she’s had a rough day. So she rejects the offer not because the cons outweigh the pros but because she’s too tired to think, and can’t trust herself with her decision. If this is a reasonable reason to reject, then the principle is invalid.
- 2.1.1.1. NOTE (MI): This doesn’t necessarily mean P1 is not valid – one reason to reject the offer perfectly consistent with P1 is that if you accept, all the other options are closed. This is presumably the reason why, when she can’t trust herself, she thinks it is more sensible to reject the offer than to accept it, because she could easily have said that she couldn’t trust herself so she would accept it in case no such opportunities come up again. These are all on the balance of reasons for accepting/rejecting, and are perfectly consistent with P1.
- 2.1.2. Tiredness in this scenario means that she hasn’t formed an opinion on the balance of reasons, but rather for the sole reason that she is tired. It is very common when faced with time constraints etc., and though it provides no reason for rejecting rather than accepting, some rule of thumb seems to be followed.
- 2.2. Y, in the army, is ordered by the commanding officer to do x, and he feels justified in doing it even though on the balance of reasons he has a strong case for not doing it. But he feels that the order is a reason for doing it regardless of the balance of reasons. If ordered to commit atrocity he would refuse, but ordinarily orders should prevail.
- 2.2.1. NOTE (MI): But this, again, can be a reason on balance – it doesn’t circumvent the balance; rather, it is such a strong reason on balance that you no longer need to consider any other reason on the balance, because nothing else can override it. The reason in this case is experience – the commanding officer is more knowledgeable and experienced than me, so even though I think on balance I should do y, I trust that my commanding officer knows better and that really I should do x. We are used to this in society – we are used to trusting our parents, the state, judges etc. to protect us, sometimes against ourselves. And so of course we defer to authority when considering whether we should do one thing or another.
- 2.3. Z promised his wife that when deciding for his son’s education he would only have the son’s interest in consideration and wouldn’t consider any other interest. Then, he has to decide whether to send his son to private school, which will affect whether he can quit his job and write a book he’s always wanted to write, and will also affect others’ ability to send their children to private school. He may regard it reasonable to disregard all these considerations because of the promise.
- 2.3.1. The promise itself isn’t a reason to send the son to public school or not – what is the reasoning?
*Raz, Practical Reason and Norms (1975) 35-48
A second order reason is any reason to act for a reason or to refrain from acting for a reason. An exclusionary reason is a second order reason to refrain from acting for some reason.
- A conflict with an exclusionary reason is not resolved by the strength of competing reasons but by a general principle of practical reasoning that determines that exclusionary reasons always prevail when in conflict with first-order reasons.
- They can vary in scope, exclude all or only some of the reasons that apply to any given problem (eg. promise to take account of only son’s interest doesn’t validly exclude consideration of justice to other people)
- Exclusionary reasons can be overridden by other second-order reasons, and only undefeated ones validly exclude.
- Possible principles:
- 4.1. Principle 2: one ought not to act on the balance of reasons if the reasons tipping the balance are excluded by an undefeated exclusionary reason.
- 4.2. Principle 3: it is always the case that one ought, all things considered, to act for an undefeated reason.
*Raz, Practical Reason and Norms (1975) 35-48
An accurate understanding of exclusionary reasons depends on
- on a test that distinguishes between the two ways that a reason can be defeated: is the reason defeated by an overriding first-order reason or an exclusionary second-order reason?
- Sometimes we can look at the content of the promise (Z’s promise) or a conceptual link between practical concepts and the notion of exclusionary reasons (thus decisions and mandatory norms can only be explained by reference to exclusionary reasons). But is there a general test?
- Taking Y’s obedience of commanding officer’s orders, he probably decided that even though on the balance of first order reasons he should disobey the order, he should obey the order anyway, because he thinks that it is not for him to decide the merits of each but it is for the commanding officer. This must be an exclusionary reason not a very weighty first-order reason because:
- 2.1. We would disregard Y’s own conception of the situation if we were to say that he regards the order only as an overriding first order reason. He isn’t saying that the order is a conclusive reason for doing x, but rather that it is a reason not to act on the merits of the case. He doesn’t see the order as another reason for doing x (he wouldn’t have done it without the order), but rather he considered the order as a reason not to completely assess the pros and cons of the decision.
- 2.2. Also, if Y obeyed the order and then subsequently ordered his subordinate to do x, and the subordinate disobeys, he would have conflicting feelings. He would think that the subordinate did the right thing, but also the wrong thing, by disobeying orders. As such, the order should be seen as an exclusionary reason.
*Raz, Practical Reason and Norms (1975) 35-48
Exclusionary reasons are useful to explain cases ..
- where there is no doubt what ought, all things considered, to be done, and yet we believe that the defeated reason is not merely overridden, but represents a different assessment of what ought to be done.
- When we react to situations with ‘mixed’ reactions, they provide evidence that there are exclusionary reasons, and when we judge these mixed reactions as appropriate, we are indicating our belief in the validity of exclusionary reasons.
*Raz, Practical Reason and Norms (1975) 35-48
An exclusionary reason may exclude or or only a class of first order reasons;
- the scope of an exclusionary reason is the class of reasons it excludes. Each second-order reason has a strength and an intrinsic scope that can be affected by scope-affecting reasons.
- Eg. If Y rejects an order from a superior because it is an exclusionary reason, then it can be assumed that all their orders are equal in scope. But they may still differ between ranks of superiors, etc. We must conclude that the rank of the officer is not in itself an operative reason (the fact that A is a major isn’t an operative reason for anything), but rather auxiliary reasons.
*Raz, Practical Reason and Norms (1975) 35-48
There can be conflicts between second-order reasons:
- There can be conflicts between second-order reasons: conflicts between a reason to act for a certain reason and an exclusionary reason to refrain from acting for it. These turn on the strength of the conflicting reasons and the presence of strength-affecting auxiliary reasons.
*Raz, Practical Reason and Norms (1975) 35-48
Two kinds of exclusionary reasons:
- Two kinds of exclusionary reasons: 1) decision based on the agent’s temporary incapacity to perform a balanced judgement (X’s decision to reject the business offer) and 2) other exclusionary reasons (eg. authority based reasons).
- First type can be because of temptation, threat, intoxication… If this is the reason then it applies only if the merits of the case weren’t examined before the incapacity arose. These differ from all other types (eg. authority based reasons) because they depend on the circumstances of the agent at the time he decides what to do.
- Thus some people conclude that this is a first order reason, but this is wrong as nothing prevents someone from going through the balance of reasons, even if he doesn’t trust his own judgment.
Raz, The Morality of Freedom (1986) 41-2, 60-2
- The pre-emption thesis is that when one ought to act because of an authoritative directive, then one’s reasons are different than if he ought to act for some other reason: the authoritative directive isn’t just one additional reason for action, but rather a pre-emptive reason – these reasons have the ability to turn ‘oughts’ into duties.
- Objection: the thesis cannot justify pre-empting reasons that the authority was meant to reflect correctly but failed to reflect. This objection is based on a false premise and therefore fails, because directives that fail to reflect reasons are nevertheless binding and justifiably so because an authority is justified according to the justification thesis if it is more likely than its subjects to act correctly for the right reasons. If every directive that is mistaken (in failing to reflect reason correctly) it is liable to being challenged as mistaken, then the advantage of accepting authority as more reliable and successful a guide to right reason disappears.
- Objection 2: if authoritative directives can be overridden/disregarded if they deviate much from the reasons that they are meant to reflect (the justification thesis claims this) then this imposes a limit on authoritative directives that defeats the pre-emption thesis in requiring everyone in every case to consider the merits of the case before he can decide to accept an authoritative instruction. This objection also fails, Raz says, because a clear mistake is different from a great mistake – a clear mistake can be small (adding together a chain of numbers of which one is a decimal, to get a whole number) and a great mistake can be subtle. Establishing that something is clearly wrong doesn’t require going through the underlying reasoning, so the objection is not to the pre-emption thesis itself.
- In the case of the arbitrator, his decision is an exclusionary reason because it replaces the balance of reasons of the parties with that of the arbitrator. The parties’ balance no longer matters, and if the arbitrator decided one way for the same reasons, then these cannot later be relied on. The same holds for why judges’ decisions become res judicata and the reasoning employed to reach one conclusion can’t then be relied on to reach the opposite conclusion.
* Have read all the set sections, but there’s a section on p63 about objections to the thesis and rejections of these objections – might be interesting.
Raz, ‘Authority, Law and Morality’ in his Ethics in the Public Domain (1994)
Three theses regarding the relationship between law and morality have been defended in recent years:
- Three theses regarding the relationship between law and morality have been defended in recent years: 1) sources thesis (all law is source-based), 2) incorporation thesis (all law is source-based or entailed by source-based law), 3) coherence thesis (law consists of source-based law together with the morally soundest justification of source-based law)
- Source-based = law’s existence and content can be identified by reference to social facts alone. All three theses give a special role in the identification of law, but differ as to whether there can, or must, be anything more.
Raz, ‘Authority, Law and Morality’ in his Ethics in the Public Domain (1994)
Sources thesis should be defended against the others because of the nature of authority
- Sources thesis should be defended against the others because of the nature of authority. Authority can be divided into 1) legitimate and 2) de facto authority (people treat you as authoritative but you lack the attributes of authority). Legitimate authority is practical, or theoretical, or both.
- Differences between practical and theoretical authorities can be understood as the distinction between reasons for belief and reasons for action, but this doesn’t distinguish between authorities and other people’s requests, while authorities’ special “peremptory status” distinguishes them from other directives
- 1.1. In arbitration, the arbitrator’s decision is a reason for action for the disputants – they ought to do as he says because he says so (it’s not one of the many reasons that relate to the case, and it’s meant to replace the other reasons on which the case depends)
- 1.1.1. But an arbitrator’s decision isn’t an absolute reason in that it has to be obeyed come what may (it can be challenged/justifiably disobeyed in certain circumstances – eg. arbitrator was bribed/drunk/new evidence later came to light…)
- 1.1.2. Two features of arbitration: dependence and pre-emptiveness: because the arbiter is meant to decide on the basis of certain reasons, the disputants are excluded from later relying on them.
- 1.2. But is the arbitrator’s case unique or common to all authority? They decide each given case, while Parliament is meant to sometimes create new reasons for doing certain things, not necessarily displace other reasons.
Raz, ‘Authority, Law and Morality’ in his Ethics in the Public Domain (1994)
Three theses of the conception of authority
- 1) dependence thesis (all authoritative directives should be based on reasons that apply to the subjects and bear on circumstances covered by the directives), 2) normal justification thesis (normal/primary way to establish X has authority over Y is that Y is likely better to comply with reasons that apply to him because he considers the directives of X as binding, than if he tries to follow the reasons that apply to him directly), 3) pre-emption thesis (the fact that an authority requires performance of an action is a reason for its performance not to be added to all other relevant reasons, but that should replace some of them)
- Dependence and normal justification theses are “service conceptions of authority” in that they regard authority as mediating between people and the right reasons that apply to them
- Thus surrender to authorities reflects their limited role – they don’t introduce new and independent considerations, but are meant to reflect dependent reasons in situations where they are better placed to do so.
Raz, ‘Authority, Law and Morality’ in his Ethics in the Public Domain (1994)
The law’s claim to authority is shown by the fact that
- The law’s claim to authority is shown by the fact that legal institutions are officially designated as authorities, regard themselves as having the right to impose obligations on subjects, claims that their subjects owe them allegiance, that their subjects ought to obey the law etc. (it doesn’t rest on the fact that it is morally legitimate)
- Official doctrine is that even a bad law should be obeyed as long as it is in force; lawful action can be taken to try and amend/repeal it
- But is something an authority merely because it claims to be? Raz thinks that only those who can have authority can sincerely claim to have it, and so the law must be capable of having authority.
