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Joseph Raz and the Authority of Law
Jurisprudence and legal theory (LA3005)
University of London
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Joseph Raz and the Authority of Law
Introduction
Joseph Raz is a legal, moral and political philosopher. He is one of the most prominent advocates of legal positivism. As a leading 'hard' or 'exclusivist' legal positivist, Raz is probably Hart's most important intellectual heir, and much of his work has been on the nature of authority and the authoritative character of law.
Raz and Legal Positivism
Raz identifies three principle claims made by positivists and attacked by natural lawyers: The 'social thesis': that law may be identified as a social fact, without reference to moral considerations, the 'moral thesis': that the moral merit of law is neither absolute nor inherent, but contingent upon 'the concept of the law and the circumstances of the society to which it applies'. The 'semantic thesis': that normative term such as 'right' and 'duty' are not used in moral and legal contexts in the same way.
Raz accepts only the 'social thesis' on the basis of the three accepted criteria by which a legal system may be identified: its efficacy, its institutional character, and its sources. From all three, moral questions are excluded. Thus, the institutional character of law means simply that law is identified by their relationships to certain institution (e. the legislature). Anything - however morally acceptable - not admitted by such institutions is not law, and vice versa.
The Concept of Authority and coordinated problems:
Authorities claim the right to tell us what to do or believe. The most persuasive justification of modem political authority points to the ability of authorities to co - ordinate human activity for the common good and on the superior expertise of those authorities in areas. But the question arises as why should one follow a directive of an authority since an authority at times leads to a conclusion with which we may not agree or creates absurdity? This is known as paradox of authority. In law the traditional solution to the paradox of political authority resorts to an idea about the legitimacy of power, but this solution is not very satisfactory in overcoming the paradox.
The Justification of following Authority: Service Conception:
The most famous of these defenses of political authority is that of Hobbes, who founded the legitimacy of state on the supposed social contract by which men could escape the state of nature, the 'war of all against all'. For example, in case of illness, it would be irrational for us to ignore the doctor's advice since to ignore the doctor would be equivalent to ignoring what years of medical research says. Thus, listening to the doctor is the rational choice here since, listening to a doctor serves his interest in the only way his interests can be served.
This is the service conception of authority which Raz capitalizes on to explain the rationality of following the practical authorities like the law. For if the authority serves us by solving a problem that we are not able or likely to solve ourself then it is obviously not irrational to follow that authority, and this is so even if the authority sometimes gets it wrong, so long as it is likely to get it right more often than us ourselves.
The 'service conception' of authority reminds us that the function of authorities is to serve the governed. Raz argues that authorities can be legitimate if by complying with the authority the subjects are better able to follow the moral reasons that otherwise apply to them. Raz calls the 'service conception' of authority the 'normal justification thesis' for authority in that it is not the only way to justify political authority but is the 'normal justification' of authority.
Under this service conception, an authority provides the deliberative and executive means for groups, communities and societies to solve co-ordination problems in an effective way. Therefore, when the Parliament, considering all the reasons following debate passes a law, that law must henceforward be taken as an exclusionary reason for action by the subjects of the law. Thus, exclusionary reasons replace all the reasons that would otherwise be balanced in coming to a decision, because the exclusionary reason represents those reasons as the conclusion of a deliberation which took those reasons into account
Normal Justification Thesis
In this way, the separation of the deliberative and executive phases of practical reason and the issuing of exclusionary reasons provide for the coordination of behaviour by different people who share general goals and values. Law binds because it is rational and its operation is coherent with the border structure of practical reason. The future can thus be made less surprising. An authority is justifiably an authority for us when we are more likely to act correctly on the balance of reasons that apply to us if we follow the directives of the authority than if we were to act on our own assessment of the balance of reasons. This authority is thus legitimate when it actually serves us by mediating between us and the reasons that apply to us in this helpful way, and this is the normal justification thesis.
Analogy drawn with Hart:
Raz's authoritative characterization of the law, and then to show how, according to the service conception, Raz conceives the law primarily to be facultative, in allowing communities to co-ordinate their behavior to achieve goods or goals they could not achieve otherwise. Hart focused on power- conferring rules to emphasize the facilitative aspect of the legal system, but the whole secondary rule apparatus of rules of change, adjudication, and recognition can also be explained from a Razian perspective as creating the institutions of authority which allow communities to serve their interests by coordinating their behavior through law.
Duty and Morality:
According to Raz, laws do not simply require things to be done or not done; they impose duties. The concept of 'duty' has the same meaning whether it is used to denote a moral, religious, or a legal duty. In other words, authoritative law directives provide both first order reasons to do something or refrain from doing something; and second order reasons which exclude one's 'dependent reasons'. Raz does accept that the content of law cannot be determined exclusively by social facts: so, for example, since courts unavoidably rely on explicitly moral considerations, they creep into determinations of what the law actually is. Although Raz conceives that moral concerns do enter into adjudication, he insists that this is inevitable in any source-based system.
Conclusion
It is submitted that in the Raz interpretation of the institutional character of the law, the legitimate legal system will inevitably reflect the social fact of the society. In this fashion Raz closes a philosophical loop in his conclusion that ‘.. to moral values or ideals is in no way a condition for anything being a law or legally binding. Hence, the law's conformity to moral values and ideals is not necessary. It is this proposition that cements the Raz position as one within the positivist camp.
