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