Book Review: Raz’s Between Authority and Interpretation

Joseph Raz, Between Authority and Interpretation (Oxford University Press, 2009), 424 pp.

H. L. A. Hart’s The Concept of Law (1961) revitalized the field of jurisprudence in much the same way Rawls’ A Theory of Justice gave new impetus to political philosophy a decade after. A Concept of Law presented a new theory of law blending arguments from the philosophy of language and previous versions of positivism. (Rawls himself claimed to have gotten the idea of proceduralism from Hart. See A Theory of Justice, p. 48) But as is often the case, a theory needs an adversary to reveal its deepest implications. This adversary came first with Lon Fuller’s “Positivism and Fidelity to Law”, a rebuttal to Hart’s essay “Positivism and the Separation of Law and Morals” (both 1958), and then with a series of essays by Ronald Dworkin published successively as Taking Rights Seriously (1977) and Law’s Empire (1986).

Hart’s positivism argues roughly that law and morality are at least separate in the sense that law cannot be reduced to morality. This means that we can study law scientifically without getting involved in disputes about substantive questions concerning the good. But since it is clear that in order to be obeyed, laws ought not merely to rely on force, laws require some source of authority which can only come through deliberation. Such deliberation, however, is need not be moral but can be thought of as merely normative. Hart holds that the authority of the law is provided by rules of recognition: these are secondary or meta-rules which specify the authority of law derived from particular social practices. A rule of recognition, for instance, is that, in the United States, laws are passed by congress according to a certain procedure. This specifies the way the law receives its authority but not what the law is (which is a matter of primary rules).

Much of the debate surrounding Hart’s theory has been about whether the rule of recognition could indeed do without moral support, that is, whether the separation of law and morality could be maintained. Dworkin, as Fuller had argued before him, contended that the rule of recognition could not be normative without also being moral because, in the case of legal interpretation for instance, the law will need to be extended to deal with difficult cases (a point Hart vacillated on). Extending the law can only be done through recourse to extra-legal principles of controversial political morality or policy, not already specified by law. So law is not free standing after all.

Prompted by Dworkin’s critique of Hart and positivism in general, there emerged roughly two types of responses within the positivist camp. The one, exemplified most forcefully by Jules Coleman, contended that positivism could accommodate Dworkin’s criticism by claiming that controversial moral problems could form part of the law. This position has become known as inclusive legal positivism. The other approach, the one championed most systematically by Joseph Raz (a student of Hart’s), argues that law need not seek a backstop in morality but can indeed be freestanding, as Hart maintained. This position came to be known as exclusive legal positivism.

The collection of essays under review here (dating from 1994-2006) continues the arguments Raz has made since the 70s, adding new arguments and revising old ones, may of which deal with the above problematic. The essays fall generally under the heading of law and morality, and of interpretation. For space reasons, this review will deal chiefly with the former. Raz’s papers, as does his previous work, have important implications not only for the philosophy of law but also for arguments in contemporary meta-ethics. They often take up question of normativity per se, of which law is only one instance.

One way to draw a distinction between the aspirations of natural law theory and exclusive legal positivism (henceforth just ‘positivist’) is to say that positivism is concerned not with the ground of law but with its function. That is to say, the question of legitimacy, the question of the ultimate justification of a legal system, is a question that arises not in the course of normal business but only for the philosopher or at times of great social turmoil. For the positivist, law is first and foremost a matter of getting things done within the polity. Efficiency is thus a central concern for the positivist. (It is perhaps a sign of the times that the limit case of positivism no longer commands quite the importance in contemporary jurisprudence as it did in the 50s when Hart and Fuller sparred about the question of whether Nazi law was really law.)

In the broadest of philosophical language, for the positivist, law is thus a matter of the experience of law while for the natural lawyer it is a matter, among other things, of also having a theory of the justification of law. Raz puts this point by saying that he is skeptical that the moral theories presented by, among others, Kant and Rawls, can be operationalized. (119) That is to say that a theory of morality will not be sufficient to motivate action. Rather, on Raz’s view, action precedes theory and the question of what law is, whether law in fact does have the authority is claims for itself, only becomes relevant when ambiguity about law threatens to undermine law’s authority. For the positivist, then, the thing that is most salient about the law is how well is gives people reasons for behaving as they should within the polity. Raz’s  is thus an instrumental view of law which privileges practical concerns over theoretical and philosophical ones.

A central contribution to this debate comes in Raz’s service conception of law. This approach was originally presented in The Morality of Freedom (1986) and is here revisited to accommodate objections. The service conception holds that the way law helps people get things done is by providing authority or motivation for them to comply with those laws which the society has evolved over time in order to facilitate getting along. Law gives people reasons to do things they were in doubt about being obligated to do. In this sense it has the power, championed by all positivists (from Bentham to Holmes and Hart), of making human interaction predictable. If you are wonder how fast it is safe to drive (or how fast others will be driving), all you need do is look at the sign indicating the speed limit. Someone has made that decision for you and by that very fact, you (and everyone else) are now obligated to obey it. In this sense law regulates behavior and facilitates interaction in a classical liberal vein: laws are understood as purely negative.

When challenges to a law’s authority do arise, these are settled, Raz argues, by meeting two conditions. First, the authority must be better at providing reasons for an action that apply to the person anyway than she would be able to provide for herself. Such might be the case when an expert can determine better how fast it is safe to drive than I can and it is also my interest to drive safely. Secondly, it must be better to conform to the laws as dictated by experts than to conform to my own judgment. (136-37) We might paraphrase these two conditions by pointing out that the first condition is a condition of effectiveness while the second is one of independence. That is, legal authority is legitimate only if it is both efficient and if I accept that this efficiency is worth relinquishing my own judgments in favor of those of the law. But relinquishing my power of judgment is still my choice and I can revoke it if things turn sour. Law thus functions as a type of heuristic which gives us quick answers to frequently asked normative questions. It must do so in an easily ascertainable and expedient way.

But how does the law deal with difficult cases, with cases that don’t seem to lend themselves to easy adjudication. Raz’s answer is, first, that laws evolve. Raz argues that by adopting a law, the society, through its representatives in government, can transform a (perhaps) controversial idea into a non-controversial one. Thus, by becoming a law, a reason for some becomes, ipso facto, a reason for all. (108) That is, the disagreement about what speed it is reasonable to drive becomes, by being specified by a law, an argument about the reasonableness not of the speed to drive, but about the reasonableness of the law itself. (109) It is not that the disagreement has disappeared but it has been given a shape. The disagreement has been formalized such that we can agree on what it would take to answer the moral question: either support the law or seek to repeal it. However, in the mean time, all will have to comply with it. The moral disagreement has, in a sense, been softened. This is how exclusive positivism keeps moral disputes at bay. The judicial process is a process which, through its very nature, is able to turn moral controversy into normative agreement. The law resolves disputes by pre-empting them. (110)

However, that cannot be the complete story, for the mere fact of legislation will only partially lay to rest the dispute. Some people will still be opposed to the law and seek to undo it. Raz, perhaps rather optimistically, believes that the rest of the moral controversy which lives on in the law can be overcome not through the law’s backing by the force of the state, but rather pragmatically, by its contribution to the successful life of the polis. Thus it is not power but success that determines the success of the law. This points again to the liberal ideas which underlie Raz’s jurisprudence. Raz, like Mill, believes deeply that the constitutional process itself will be able to iron out the kinks in our society. He shares with Rawls and Hart something like the idea that we can have a free-standing (non-moral) consensus about what is essential to our society. Laws are one of the ways this consensus is achieved.

Finally, let me draw out one more consequence from the above. The parliamentary system for creating laws can, on Raz’s view, as we have seen neutralize moral disagreement. It does so taking up controversial topics and turning them into law. The appeal of positivism is that through the process of legislation controversial issues are given resolutions which are universally normatively valid. Moral controversies can be deflated and, rather than being denied, be turned to the advantage of everyone. Law thus provides an answer to the question of how I can angrily object to a candidate for office and yet, after she is elected, seek fully to comply with the laws she is instrumental in passing. Positivism claims that to the natural lawyer, this transformation must remain a mystery. For the positivist, however, such a transformation merely points to the fact that social convention is, in fact, stronger than individual moral reflection.

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Stefan Bird-Pollan is an assistant professor of philosophy at the University of Kentucky.

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2 Responses

  1. Thanks for the review. Of course there’s much one might choose to discuss here but I’ll limit myself to the following, and only in a cursory fashion at that:

    “He shares with Rawls and Hart something like the idea that we can have a free-standing (non-moral) consensus about what is essential to our society.”

    I doubt Rawls’s notion of a political conception of justice as “freestanding” was at all “non-moral,” indeed, it depends in a fundamental way upon the notion of “free and equal persons,” a moral conception that is, at the same time, for Rawls, part of “our” public political culture. Freestandingness, as it were, refers in this case to the capacity for elaboration independently or apart from what Rawls understood as a “comprehensive” (world-) view (it’s of course arguable that people subscribe in any strong or philosophically consistent sense to fully comprehensive doctrines). As Gerald Gaus reminds us, this does not mean that a freestanding conception can exclude religious, philosophical or moral beliefs as such, only that such beliefs can make sense apart from the various larger worldviews in which they may be embedded (e.g., we can make sense of the notion of someone’s belief in God without reference to a particular theistic tradition in which it may be found, as was the case, for instance, with deism among the ‘Founding Fathers’), that people of varying worldview conceptions may express a commitment to a moral belief, understood at a particular level of generality and abstraction that serves at the same time as a political value in a manner that does not (necessarily) commit us to acceptance of the particular worldview in which it may be found or which fills out a particular meaning or interpretation or ramifies in directions that differ from this selfsame concept or belief in other worldviews (which is why, for instance, people of varying worldview orientations can come to endorse, say, the notion of human dignity that lies at the foundation of human rights doctrine). The scope of the political here can embrace the moral provided the latter is properly constrained by “the reasonable,” a quality intrinsic to beliefs, be they religious, moral or philosophical, that can be relatively “freestanding” in this way, that is, endorsed without at the same time committing oneself to any particular comprehensive doctrine or worldview in which they may be found. Indeed, the political conception “is a moral conception worked out for a specific kind of subject, namely, for political, social, and economic institutions.” The political conception is thus grounded in moral beliefs, here, on a conception of persons as free and equal (not to say reasonable or rational), and therefore justice as fairness insofar as it accords respect to this moral proposition. Reasonable persons subscribe to these beliefs in democratic societies, hence their minimal political justification, a justification that is further enhanced in a “fuller,” more explicitly public fashion, with the notion of an “overlapping consensus” that involves citizens reasoning from their worldviews or comprehensive doctrines to endorse this implicit political conception, hence the “shared” political conception of justice, as an implicitly shared moral belief AND a publicly justified conception as a consequence of an “overlapping consensus.”

    Similarly, with Hart, we must account for the fact that he “embraced what he called a ‘minimal moral content of natural law’ that provided support for both moral and legal norms in any society….” Larry May elaborates:

    “According to Hart, some legal positivists, ‘Hobbes and Hume among them, have been willing to lower their sights: they have seen in the modest aim of survival the central indisputable element that give empirical good sense to the terminology of Natural Law.’ The minimum purpose of survival is what brings people together to form societies. ‘In the absence of this [minimum] content men, as they are, would have no reason for obeying voluntarily any rules.’ On this account, the human need for survival, and the corresponding need for security, are facts that provide a natural basis, and perhaps a limit, for both legal and moral rules, at least as long as humans are vulnerable to attack by one another. The rules that Hart attempts to derive from this minimum content include requirements prohibiting killing and bodily attack, mandating a system of mutual forbearance, and respect for property. [….]

    [In short, Hart] talked explicitly of a minimum content of the natural law on which legal norms based their efficacy, although not their justification.” The efficacy here is what accounts for the criterion of legitimacy.

    With both Hart and Rawls, in other words, it seems the minimal political and legal consensus “about what is essential to our society” is not properly characterized as “non-moral,” but rather reasonably, minimally, or modestly moral

  2. I decided to bring up one more point:

    Legislation and adjudication can indeed be seen in some sense as reducing the scope and content of moral controversy through decision procedures (authorized by public reason) by which we resolve disputes about what is to be done in the light of moral and political disagreement. And Raz fully appreciates the sundry virtues associated with this. But while the law can thereby tell us what to do, i.e., for instance, create legal duties and obligations, the reasons for same cannot be merely practical ones (cf. ‘success’ above), reasons that are merely in our interest to believe, apart from whether or not they are true or well-justified. I would think the law’s legitimacy is dependent on our perception that it is, in some measure, grounded in right reasons, that we accept the law on epistemic not just practical grounds, hence law’s “reason” is not justified or legitimate based solely on its provenance (e.g., legislation) but also in the fact it is truth-tracking or truth-sensitive in some manner, as Gaus explains with regard to a similar idea in Hobbes:

    “We believe things because we believe them to be true or well-justified—belief is truth-centered. If so, we cannot accept the sovereign’s reason as right reason just because it would serve our interests to do so, unless we somehow deceived ourselves—tricked ourselves into thinking that we followed his reason because it was right, when in fact we do so only because it is useful.”

    On this account, public reason can never be wholly severed from private reason (‘individual moral reflection’) even if the former (as ‘public’ and ‘collective’) has the virtue of purging itself of the latter’s passions and biases.