Joseph Raz's Legal Philosophy
From IVR encyclopedie
Joseph Raz emerged in the 1970’s as one of the most influential contemporary writers in the philosophy of law. His work in analytical legal theory continues a rich tradition running from Thomas Hobbes to Jeremy Bentham, John Austin, Hans Kelsen, and H.L.A. Hart. While Raz’s views certainly embody a theory of law, he does nothing so simple as saying ‘law is.’ Rather, he provides inter-dependent analyses of central characteristics of law, usefully approached through his analysis of legal norms – the building blocks of legal system – as special kinds of practical reasons for action. This central view is explained in section II, followed by explanation of his other distinctive contributions to legal philosophy. These include an account of the authoritative nature of law (section III), a rejection of the legal positivist ‘separation thesis’ which nonetheless preserves the positivist insight about the moral fallibility of law (section IV), an account of legal system and related problems of identity and continuity (section V), and engagement with the methodology of legal theory (section VI).
II. Legal Norms as Second-Order Reasons
In early work Raz argues that legal philosophy is best understood as one branch of the philosophy of practical reason, philosophy engaged in the analysis of reasons for action.(Raz, 1979) Raz distinguishes first-order from second-order reasons for action, calling first-order reasons those which apply to subjects in the absence of consideration of any social institutions or norms. These include, e.g., reasons of prudence, health or well-being, and some reasons of morality. Second-order reasons are reasons about reasons, and are characteristically found where there are social institutions and norms. Raz characterizes legal norms as general kinds of institutionally-accepted second-order reasons, devoting the most attention to mandatory norms, first called ‘exclusionary’ and later ‘preemptive’ reasons not to act on first-order reasons. A familiar non-legal example will illustrate this view. I have a first-order (or ‘operative’ or ‘dependent’) reason of financial well-being to make sound investment decisions, but I am not always in the best physical or emotional or rational state to make such decisions. I might then accept and practice a second-order reason (i.e., a norm) that I should not make any investment decisions when I am tired, no matter how good or bad an investment option might look. My second-order reason not to make investment decisions when tired here functions to exclude or preempt appeal to the first-order reasons (i.e., the merits of an investment option and its potential effect on my financial well-being).
Law makes use of second-order reasons in a special way. Where norm subjects’ choices in some situation are ordinarily made by relying on some one or more first-order reasons for conduct bearing on that situation, laws govern that situation by functioning as second-order reasons for conduct which exclude or preempt reliance on otherwise relevant first-order reasons. For example, we all have first-order reasons of safety to coordinate our conduct according to traffic rules. But once a rule has been made, or perhaps crystallized from long-standing practice, we no longer need to (nor should in situations where we are ignorant of the rules) appeal to first-order reasons of safety to determine, e.g, on which side of the road to drive. The legal rule, e.g., drive on the right, serves as a second-order or exclusionary reason on which we are to act, and so excludes or preempts appeal to first-order reasons.
III. Law’s Authority
Raz’s account of the authoritative nature of law is intertwined with his account of legal norms. Law’s authority is what gives legal norms their legal quality distinguishing them from other second-order norms. Raz’s account of law’s authority is perhaps his most distinctive contribution to legal philosophy, attracting distinguished advocates, and equally distinguished critics.
The theory holds that where law exists, it necessarily claims authority to regulate comprehensively, supremely and openly the lives of its subjects. (Raz, 1979, 116-120) Law claims to be comprehensive in that all aspects of social life are regulated, whether by prohibition, requirement, or permission. Law claims to be supreme in that a legal system claims to sit at the top of a hierarchy of all normative systems and norms within a particular society. Finally, law claims to be open, offering support or authorization to various forms of voluntary associations and private agreements.
Several aspects of this summary statement deserve further explanation. First, since laws only exist in legal systems, investigation of the nature of law is at the same time an investigation of legal systems and their authority. Raz notes that since there is nothing logically distinctive about legal norms as second-order reasons which marks them apart from other, non-legal second-order reasons, what makes them legal norms is their membership in a legal system. The membership is identified by observation of their systematic application by norm-applying institutions. (Raz, 1979, ch. 6)
A second aspect is the special significance Raz’s account attaches to law’s self-image. Not only do legal systems provide legal norms to guide the conduct of their subjects, they also claim a kind of legitimate authority over them. The exclusionary or preemptive reasons law provides claim to be justified reasons, since they are meant to reflect a settled and accurate view of the first-order reasons which apply to subjects. This aspect of Raz’s view is supported by intricately detailed argument, summarized in three distinct theses about laws as practical reasons: the dependence thesis, the preemption thesis, and the normal justification thesis. (Raz, 1995, 214) The dependence thesis maintains that “[a]ll authoritative directives should be based, among other factors, on reasons which apply to the subjects of those directives and which bear on the circumstances covered by the directives.” (Raz, 1995, 214). In other words, law could not claim authority unless it claimed to be based, at least in part, on these ‘dependent’ reasons, which include moral reasons. The preemption thesis holds that law functions to reflect and replace first-order dependent reasons, through provision of second-order, preemptive reasons in the form of legal norms. In other words, to claim authority is to claim to make a practical difference in the practical deliberation of subjects by preempting appeal to first-order reasons. The normal justification thesis states that the law claims that subjects are normally justified in following law’s directives since to follow these will more likely lead subjects to act on the right balance of first-order dependent reasons than if subjects tried to act on appeal to first-order dependent reasons themselves.
The dependence, preemption, and normal justification theses which constitute Raz’s theory of law’s authority represent a sophisticated contribution in political philosophy to understanding the relation between subjects and states, and they display Raz’s answer to the anarchist’s challenge that authority and reason are incompatible. By explaining the nature of law’s authority in terms of its role in practical reason, Raz can hold that there is nothing irrational or compromising to one’s autonomy in following rules or living under the authority of a state. Yet in the philosophy of law the three theses also go a long way towards resolution of at least one of the longstanding disputes between natural law theorists, who insist that law must be understood in terms of its moral purpose, and legal positivists such as Hart, who deny any such necessary connection between law and morality. On the one hand, Raz’s theory of law’s authority shows that law must be understood in terms of its moral purpose: in conceiving of law one must understand that necessarily law claims moral authority to settle for subjects how they ought to conduct themselves. (Raz, 2003, 14) But, on the other hand, by emphasizing the special significance of law’s claim for itself to be a moral authority, rather than emphasizing the truth or falsity of such a claim in any or all circumstances, Raz’s theory preserves the positivist insistence that particular laws and legal systems everywhere are morally fallible.
Raz does not, therefore, share Hart’s view of the separation thesis which holds that “… it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.” (Hart, 1994, 185-6) The difference is easy to miss but important. Hart thought that in conceiving of law one need not suppose that it must reproduce or satisfy demands of morality: when law does reproduce or satisfy demands of morality, it is a matter of contingent, historical fact and nothing more. On Raz’s view, in conceiving of law one must understand that law claims to be morally authoritative, so law must be understood to claim to reproduce or satisfy demands of morality. This is of course different from the general, external view that it is morally desirable that law reproduce or satisfy demands of morality. Rather, the connection is internal: when law does reproduce or satisfy demands of morality, we are not restricted to the conclusion that this is simply a matter of contingent, historical fact. We are also entitled to the observation or conclusion that this is part of law’s nature, and that its claim in a particular instance happens to be justified. Likewise, when law does not reproduce or satisfy demands of morality, we are able to draw the additional conclusion that law’s claim, while sincere or genuine, is unjustified. (Raz, 2003; see also Green, 2008)
IV. The Sources Thesis
While law’s authority is best understood in terms of a moral claim to best reflect and replace direct appeal to moral and other first-order reasons, Raz emphasizes that legal theorists must not suppose that legal directives of states claiming authority are morally legitimate simply in virtue of being claimed to be so. Raz’s ‘Sources Thesis’ highlights the positivist insistence that the existence of particular laws and legal systems is everywhere and always a matter of social practices and never a matter of satisfaction of moral principles or values. (Raz, 1979, 47-52) ‘Exclusive positivism’, as Raz’s view has been called, maintains that moral considerations are never among the existence or validity conditions of law. (Giudice, 2002, 2003, 2008)
Here we have a second difference between Raz’s and Hart’s view of law. Hart supposed, but defended only briefly, the possibility that some legal systems might include or incorporate moral criteria among the ultimate tests of legal validity for the membership of legal norms. (Hart, 1994, 250) This view has come to be known as ‘inclusive positivism’ or ‘incorporationism’, of which there are several variants. (Waluchow, 1994; Coleman, 2001; Kramer, 2004) Raz rejects inclusive positivism, arguing most forcefully that the possibility of moral criteria or considerations counting among the ultimate tests of legal validity is incompatible with the claim of authority necessarily made by all legal systems. The ‘argument from authority’ is as follows (Raz, 1979, ch. 3; 1995, ch. 10). To claim authority, a legal directive must at least be capable of claiming authority. To be capable of claiming authority a legal directive must purport to make a practical difference by excluding or preempting appeal to dependent reasons, which include first-order moral reasons. Inclusive positivism, by maintaining that determination of the existence or validity of law might sometimes require moral consideration or argument, imagines a situation which cannot exist, since to appeal to moral considerations in the determination of legal validity renders law incapable of making a practical difference, and so renders it incapable of claiming authority to settle for subjects what they ought to do according to law.
V. The Identity and Continuity of Legal Systems
Raz’s work on the nature of law’s authority continues to develop and attract critical attention. But his work in the philosophy of law extends far beyond his influential contribution to the theory of law’s authority. His work on the nature of legal system offers interesting insights and illumination on unresolved problems of identity and continuity. Raz famously does not share the view that the identity of legal systems – the unified set of member norms – can be solved by appeal to a single basic norm or rule of recognition. In his view, there could be multiple basic norms or rules of recognition in a single legal system. Part of the solution to the problem of identity requires observation that legal systems claim to be comprehensive, supreme, and open, a view which supposes that legal norms amount to a system when they are all operated by the same norm-applying institutions. (Raz, 1979, chs. 5,6)
This account, however, is judged even by Raz’s defenders to be underdeveloped, facing several problems. In particular, it is far from clear that all state legal systems can be accurately understood to be making supreme, comprehensive, and open claims to authority.(Marmor, 2001, 39-42) The idea of legal systems as supreme, comprehensive, and open normative systems also leaves intact the problem of the continuity of legal systems: what explains the persistence of a legal system and what distinguishes changes within a legal system which do not alter its identity or existence from changes to a legal system which do alter its identity or existence? Raz only offers a theory of momentary legal systems, a snapshot in time holding a legal system’s identity and existence stable for the purpose of analysis, and suggests that others, including Hart, have either overlooked the problem of continuity or simply found it unfashionable to solve. (Raz, 2001, 11) As new forms of legal order emerge, in the form, for example, of the European Union, questions of the identity, existence, and continuity of legal systems must be taken up again, and Raz’s work may be a particularly helpful point of departure. (See Dickson, 2008)
VI. Methodology and Conceptual Analysis
Raz’s work on the theory of law’s authority and the nature of legal systems is systematic and profound. His remarks on the methodology of legal theory are less systematic, but no less insightful. His view about the goals and success conditions of analytical legal theory in particular, and social philosophy in general, is perhaps best stated in a passage on authority in The Morality of Freedom. He writes
Accounts of ‘authority’ attempt a double task. They are part of an attempt to make explicit elements of our common traditions: a highly prized activity in a culture which values self-awareness. At the same time such accounts take a position in the traditional debate about the precise connections between that and other concepts. They are partisan accounts furthering the cause of certain strands in the common tradition, by developing and producing new or newly recast arguments in their favour.(Raz, 1986, 63)
A central aim of philosophy of law is to offer explanations of the general concepts of law (and the concept of law itself) which are responsive to both citizens’ and theorists’ interests in a way which illuminates their self-understanding. As he writes elsewhere, the theorist’s goal is to “advance our understanding of society by helping us understand how people understand themselves.” (Raz, 1995, 237)
This is a nuanced view, and one far removed from any belief that philosophers of law are in the business of elucidating the meaning or definition of particular words. Raz’s view is nonetheless vague in one respect: what counts as or what are, exactly, the philosophical interests of citizens and theorists? But here the vagueness is deliberate, and a decisive strength. As Raz notes in identifying the unsolved problems of identity and continuity, the interests of citizens and theorists shift, such that some problems might fall in or out of fashion. About explanations of the concept of law in general, he writes that there are no uniquely correct explanations, but only better or worse explanations depending on the concerns addressed (Raz, 2001, 10). It might be, for example, that in some era and social situation explanation of the nature of authority best responded to questions about the nature of law, as citizens and theorists alike were concerned to understand the nature of their relation to the state. In another era and social situation explanation of the nature of governance might be more responsive to concerns about the nature of law, as citizens and theorists seek to understand new forms of private regulation and their relation to public forms of law in a globalizing world. Similarly, in one era attention to the nature of state legal systems might have been prominent, but this may also be changing as new forms of non-state legal orders seem to be emerging. By highlighting the philosophy of law’s responsiveness to contingent practices and shifting interests, Raz’s views serve well to characterize its never-ending tasks.
Yet, responsiveness to contingent practices and shifting interests might suggest that Raz’s view is incapable of offering what a theory of law should: an explanation of law’s universal and essential properties.(Raz, 2005, 324, 328) But here appearances of having abandoned legal theory’s goal are deceiving, and show a further way in which Raz’s view of the methodology of legal theory is nuanced. The fact that explanations of the concept of law are explanations in service of particular inquirers’ interests does not preclude holding at the same time that law has universal or essential properties. In more recent work Raz argues that beginning with an explanation of our concept of law, a concept developed largely in the Western world of sovereign states, need not inevitably result in a rigidly parochial concept of law. While our concept of law is a stable part of a common and shared understanding, it is still a “philosophical creation”, designed to aid understanding of particular social phenomena by mediating between words or phrases and aspects of the world. (Raz, 2005, 324-325) As a “philosophical creation”, which is more than a reflection of linguistic usage, that creation is influenced by new experience, and as Raz notes, our concept of law has in fact been changing to make it “more inclusive and less parochial”. (Raz, 2005, 332) In this way, concepts of law are not in competition with but instead responsive to shifting interests as, e.g, our interest in understanding law may be expanding from its familiar context of a singular sovereign state to comparison between dissimilar types of states to transnational, international, and global contexts.
Understanding this complex view nonetheless requires observing a distinction Raz draws between the nature of law and the concept of law (a distinction Raz argues that earlier theorists, including Hart, overlooked). (Raz, 2005, 332) The nature of law is to be a metaphysical object having universal and essential properties, while the concept of law is a parochial, typically prevailing understanding of law’s nature. It is important to note that by this distinction Raz does not aim to argue that law really does have universal and essential properties – only that those committed to supposing that there is such a thing as the nature of law are committed to viewing law as having universal and essential properties. Whether there is or is not a ‘nature’ of law cannot be assessed from evaluation of ‘our’ or ‘your’ concept of law, since explanations of concepts of law are explanations of a particular perspective of law’s nature, not explanations of the universal and essential properties themselves. In other words, no conclusion either way – whether law does or does not have universal or essential properties – can be drawn from observation that concepts of law differ and are subject to change. There is also, then, on Raz's view, nothing objectionable in applying our concept of law to other cultures which do not share our concept of law, or do not themselves have a concept of law at all. What matters is whether other cultures have social institutions which have the nature of law: legal institutions which are subject to conceptual explanation. An explanation of a concept of law is a thus kind of descriptive-explanatory tool used by inquirers with interests and perspectives to explain the world to themselves and others as they see it.
There is one final observation which is important to note and rounds out Raz’s view of the methodology of legal theory. The closer a concept of law comes to covering or designating successfully all instances of law, and so transcending its particular origin, the closer explanation of that concept of law comes to explanation of the nature of law. As Raz writes,
Is it not our aim to study the nature of law, rather than our culture and its concept of law? Yes and no. We aim to improve our understanding of the nature of law. The law is a type of social institution, the type which is picked up – designated – by the concept of law. Hence in improving our understanding of the nature of law we assume an understanding of the concept of law, and improve it.” (Raz, 2005, 331)
So while the life of a concept of law might have a parochial beginning, through its responsiveness to shifting practices and broadening interests and perspectives, it may, eventually, come to resemble the kind of philosophical concept of law a general jurisprudence or truly general legal theory seeks to accompany in explanation of the nature of law.
Raz’s work in the philosophy of law ranges broadly, from an account of the nature of individual legal norms to a theory of legal system to an account of the very aims and methods of legal theory. This short introduction has been just that, a short introduction to some of his leading ideas, attempting to show the marked differences between his views and those of previous theorists in the analytical legal theory tradition, views which have already influenced a generation of later legal philosophers. Perhaps most importantly, Raz’s views show in equal measure distinctive contributions to philosophical theorizing of law and motivation for pursuing old questions from new directions.
Authority, concept of law, dependence thesis, exclusive positivism, inclusive positivism, legal norm, legal system, methodology, nature of law, normal justification thesis, preemption thesis, reason for action, separation thesis, sources thesis.
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