Raz, “Authority, Morality, and Law”

I. Introduction: The Incorporation Thesis.

II. The Service Conception of Authority. Critical to the Razian argument against the Incorporation Thesis is his “service conception of authority.” According to Raz, authority is supposed to serve its subjects by standing between subjects and the reasons that apply to them in deciding what to do in the following sense. First, the authority is supposed to decide for subjects how they should behave by weighing the reasons that apply to subjects. Then the authority is supposed to issue a directive that tells them how to behave in a way that eliminates the need for subjects to weigh those reasons. Thus, the service conception of authority is defined by three theses:

A. The Preemption Thesis. Authoritative directives provide reasons for action that ought to replace the subject’s own judgments about what the underlying reasons require. As Raz describes this function: “The [authority’s] decision is for the [subjects] a reason for action. They ought to do as he says because he says so…. [But] it is not just another reason to be added to the others, a reason to stand alongside the others when one reckons which way is better supported by reason.… The [authority’s] decision is also meant to replace the reasons on which it depends. In agreeing to obey his decision, the [subjects] agreed to follow his judgment of the balance of reasons rather than their own. Henceforth his decision will settle for them what to do (ALM 212-13).” Thus, according to the Preemption Thesis, “the fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should replace some of them” (ALM 214).

B. The Dependence Thesis. Given that authority is supposed to “serve” its subjects by weighing the reasons that already apply to the subjects, authoritative directives should be based on those reasons.

C. The Normal Justification Thesis. According to the Normal Justification Thesis, authority is justified only to the extent that it does a better job than the subject of figuring out what the subject ought to do according to the reasons that already apply to him. Thus, authority is justified only insofar as the subject “is likely to better comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding, and tries to follow them, than if he tries to follow the reasons which apply to him directly” (ALM 214).

III. Law’s Claim of Legitimate Authority. The second key move in the Razian argument is his claim that it is part of the nature of law that it claims morally legitimate authority. Otherwise put, Raz believes that every conceptually possible legal system claims legitimate authority.

Why does Raz believe this? He argues that practices that are conceptually essential to law justify an inference that law claims such authority: “The claims the law makes for itself are evident from the language it adopts and from the opinions expressed by its spokesmen, i.e. by the institutions of the law. The law’s claim to authority is manifested by the fact that legal institutions are officially designated as “authorities,” by the fact that they regard themselves as having the right to impose obligations on their subjects, by their claims that their subjects owe them allegiance, and that their subjects ought to obey the law as it requires to be obeyed (i.e. in all cases except those in which some legal doctrine justifies breach of duty). Even a bad law, is the inevitable official doctrine, should be obeyed for as long as it is in force, while lawful action is taken to try and bring about its amendment or repeal.”

A. Law Must Be Capable of Being Authoritative.

IV. Moral Criteria of Legality are Incapable of Legitimate Authority. To see the problem, consider a simple example of an inclusive rule of recognition: “All and only moral norms are legally valid.” The subject cannot determine whether or not a particular proposition is law without deciding for herself whether or not it captures the content of some moral norm – and this, as is evident, requires her to decide what she ought to do on the balance of moral reasons; the subject who follows the “law” in such a system is, in essence, just following her own judgments about what she (morally) ought to do.

V. The Razian Argument Summarized. Raz’s argument can be summarized very roughly as follows:

1. It is a conceptual truth that law claims authority.

2. If 1, then law must be capable of being authoritative.

3. For law to be capable of being authoritative, it must consist of directives capable of replacing the subject’s judgments about how to behave.

4. Therefore, law must consist of directives capable of replacing the subject’s judgments about how to behave.

5. Moral criteria of legality are incapable of replacing the subject’s judgments about how to behave (because a subject must deliberate about how she ought to behave according to morality to figure out how she ought to behave according to law).

6. Therefore, there cannot be a legal system with moral criteria of legality.

VI. Objections.

A. Premise 1.

B. Premise 3.