Joseph Raz is known for his werewolf-like mane of hair, and his complex conceptual analyses of morality, law and authority. Although I have little interest in cultivating the former, I have some interest in the latter and, fortunately for me, Raz combines all three areas of inquiry in his famous article “Authority, Law and Morality”. That article provides the inspiration for the current series of posts.
In it, Raz presents his unique conception of authority, and uses it defend the Sources Thesis of law. According to this thesis, all law is based on social facts, not moral ones. As a thesis about the nature of law, it is to be contrasted with the Incorporation Thesis — which says law includes social facts and whatever is entailed by those social facts (which may include moral truths) — and the Coherence Thesis — which holds that law includes source-based law along with the best moral justification of that source-based law.
As we saw at the end of the last post, Raz’s argument for the Sources Thesis follows this pattern of reasoning:
- (1) If law is to claim authority, then it must have certain properties P1…Pn.
- (2) Law claims authority.
- (3) Therefore, law has properties P1…Pn.
- (4) The Sources Thesis is compatible with law having properties P1…Pn; the Incorporation Thesis and the Coherence Thesis are not.
- (5) Therefore, the Sources Thesis is (probably) the correct account of the nature of law.
I accepted premise (2) the last day. This frees me up to consider the more important premises, (1) and (4), in this post. The remainder of this post looks at both, starting with premise (1).
1. The Two Conditions for Claiming Authority
In part one, I sketched the basic elements of Raz’s Service Conception of authority. According to this conception, one of the key functions of an authority — any authority — is to mediate between the subjects of the authority and their reasons for action. Two people may be in some dispute as to whether or not a certain action (call it “A”) should be performed. There are reasons weighing for and against it and they can’t decide which set of reasons is weightier. An authority can help them by performing the necessary deliberations and issuing a directive about A. This directive then replaces (in part) the reasons that the two people had for doing or forbearing from A. In this manner, the authority steps between the two people and the set of reasons; it mediates between them and their reasons.
An authority can perform this mediating function in more or less successful ways. To be fully successful, the directives issued by the authority would need to be fully justified. That is to say, they would need to give the subjects of the authority decisive reason to follow the directive. The mechanics of justification are complex, but if you’re interested, Raz’s preferred model of justification was discussed in part one. I ignore it here because what matters now is not success, but intelligibility. We do not assume that law successfully claims authority, only that it does so intelligibly. How does it do so?
To unsuccessfully, but intelligibly, perform the mediating function, two conditions must be met:
The Agency Condition: The directive issues must represent (or be taken to represent) some agent’s (or agents’) view of how the subjects of the authority ought to behave. In other words, it must represent somebody’s judgment about what the set of reasons we have for doing or forbearing from some action requires.
The Identification Condition: It must be possible to identify the directive without resorting to or relying upon the reasons or considerations on which the directive purports to adjudicate.
These two conditions are the properties that the law must exhibit if it is to claim authority. Thus, we can fill in the variables in opening argument as follows:
- (1*) If law is to claim authority, then it must meet the Agency Condition and the Identification Condition.
Why is this? I take it that the argument for endorsing the Agency Condition is relatively straightforward. If an authority is to perform its mediating function, then its directives must represent some judgment about the set of reasons, otherwise there would be no “stepping between” the subjects and the set of reasons. It does not need to be a single agent’s view. It could be a collective body of agents, and the view of the collective may not be simply reducible to the views of its individual members. Nevertheless, it must be someone’s judgment about the set of reasons.
The argument for the Identification Condition is more subtle, but it makes sense. What Raz is saying is that the directive issued by the authority must not simply replicate, or redirect the subjects to, the set of reasons for doing or forbearing from the relevant act. If that was all that the authority did, it could not perform the mediating function. It is easiest to understand this by considering an example. Imagine two farmers who wish to divide a plot of conjointly owned land between themselves. They agree that the relevant set of reasons for resolving their dispute consists in the principles of fair and equitable distribution. However, they cannot decide which principle (or principles) should determine the outcome. They submit the dispute to an arbitrator, who gets back to them with a directive: “You should divide the land between yourselves in a fair and equitable manner”.
Clearly, the arbitrator fails to perform the mediating function in this example. The arbitrator simply redirects the farmers to the set of reasons they already knew to be governing their dispute. The reasons are not replaced. If the arbitrator is to perform the mediating function, they need to provide guidance that can be identified and understood by the farmers apart from the original set of reasons. Thus, they need to tell the farmers something like “You should divide your land exactly midway between the boundary fences” or “Farmer X should get 2/3 of the land and Farmer Y should get 1/3”. This way the farmers can know what is being demanded of them, without being forced to deliberate about fair and equitable distributions themselves.
So these are the two conditions that Raz thinks the law must meet if it is to claim authority. One problem with this is that it relies heavily on the Service Conception of authority. What if that conception of authority is wrong? In his article, Raz suggests that a weaker conception of authority results in much the same conclusion. Basically, he suggests that authorities must act for reasons, and those reasons must make some difference to their subjects’ reasons. But in order to do this something very similar to the agency and identification theses must hold true. I won’t spell out that argument in detail here. As it happens, I think the Service Conception of authority is pretty cogent (though that doesn’t mean I think it morally ideal).
2. The Case for the Sources Thesis
That leaves us with premise (4), which, if the preceding discussion is correct, must read like this:
- (4*) The Sources Thesis is compatible with law meeting the Agency and Identification conditions; the Incorporation Thesis and the Coherence Thesis are not.
Supporting this premise are three distinct arguments. First, there is the argument in favour of the Sources Thesis. Second, there is the argument against the Incorporation Thesis, and third there is the argument against the Coherence Thesis. I’ll briefly consider each.
According to the Sources Thesis, law is identified by reference to its sources, and its sources are certain social facts. Thus, the typical sources of law are legislation, case law and custom, each of which constitutes a social fact. Raz argues that each of these sources meets the agency and identification conditions. In the first instance, they each represent some person or persons’ views about what ought to be done. In the second instance, identifying the content of the directives requires no more than a knowledge of history and/or language. For example, to know what the tax statute demands, you simply go to the text and work out its meaning.
But that’s actually not always that easy. To figure out what a text demands, you need to interpret it, and Raz’s views on interpretation are undertheorised in this particular article (this is something he corrects for in other articles, see for instance his recent collection of essays Between Authority and Interpretation). The problem is that legal texts may often simply direct subjects to sets of reasons that they must deliberate on. For example, a prohibition on “cruel and unusual punishment” or a commitment to trial in accordance “due process of the law” is not particularly informative. If they mediate between subjects and sets of reasons at all, then they do so in a very minimalistic way. They do not really represent a considered view about what reason demands in the relevant contexts.
Of course, it could be that these sorts of directives simply fail to be “law” in the proper sense of the term, but I don’t think that’s Raz’s view. That much becomes apparent when you consider his critique of the Incorporation Thesis. According to this thesis, law consists of sources plus whatever is entailed by those sources. This leads to a violation of the identification and agency conditions. Law cannot perform the requisite mediation if it consists of whatever is stated or expressed in its sources and whatever is entailed by those expressions. Raz explains this by means of an analogy:
Suppose that a brilliant mathematician, Andrew, proves that the Goldbach hypothesis…is true if and only if the solution to a certain equation is positive. Neither he nor anyone else knows the solution of the equation. Fifty years later that equation is solved by another mathematician and the truth of the Goldbach hypothesis is established. Clearly we would not say that Andrew proved the hypothesis…”
For similar reasons, Raz argues that law, qua authority, cannot be said to direct you to do or forbear from doing everything that is entailed by its directives. Including every possible entailment would prevent law from claiming authority because it would include things not reasonably attributed to the authority.
But, of course, this creates huge headaches when it comes to understanding legal interpretation, which Raz fully appreciates. For it seems that in interpreting law, judges do add all manner of entailments to its original contents. Are we saying that these entailments do or do not form part of the law? Do we restrict the contents of law to whatever the original drafters of the law believed to be entailed by their directives? Or do we allow for more creativity and innovation in legal interpretation? In the article, Raz clearly endorses the creative view of interpretation, but that creates tensions with his primary argument about what law must do if it is to claim authority. The tension is not satisfactorily addressed in this particular article. As a result, I think the case for the Sources Thesis is less than fully persuasive.
Given this, a discussion of the argument against the Coherence Thesis seems somewhat pointless, but I can summarise Raz’s thinking pretty quickly. The Coherence Thesis represents Dworkin’s view of law. According to this, law includes sources and the moral principles that best justify those sources. Raz argues that by including the “best justification” of the sources, the agency and identification conditions are violated.
You can probably imagine how his argument goes. First, he says that the “best justification” of law does not represent any agent’s considered view of what reason requires, it merely represents a placeholder for what could be a considered view about what reason requires. Second, including the “best justification” of the sources of law within the law redirects attention to the set of reasons that the law was supposed to pass judgment on. Thus, the Coherence Thesis does not allow the law to perform the requisite mediating function between subjects and reasons.
To conclude, Raz’s argument from authority says several interesting things about the nature of authority and law. It says that authorities play an important mediating function between their subjects and the sets of reasons those subjects have for doing or forbearing from some action. It says that law necessarily claims authority. And it says that in order for law to claim authority it must satisfy two conditions: the Agency Condition and the Identification Condition.
Raz then uses these propositions about law and authority to defend the Sources Thesis of law. According to this thesis, law consists entirely of social facts (sources). Raz argues that only the Sources Thesis allows for the Agency and Identification conditions to be met. However, in the preceding discussion I suggested that Raz’s defence of the Sources Thesis isn’t entirely persuasive. To become fully persuasive, a more complete theory of legal interpretation is needed, one that explains how the creative development of the law is compatible with the underlying claims about authority. Raz tries to develop this theory elsewhere, but in this particular article his views are undertheorised and so the end result is somewhat unsatisfactory.