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TABLE OF CONTENTS
TEXTBOOK.......................................................................................................................................................................2
BIX, CHAPTER 12 "AUTHORITY, FINALITY AND MISTAKE".....................................................................2
ON RAZ'S THEORY OF AUTHORITY....................................................................................................... 2
ON BENTHAM AND AUSTIN'S COMMAND THEORY................................................................................ 3
INTRODUCTION....................................................................................................................................................4
BACKGROUND READING.................................................................................................................................4
T. ENDICOTT, 'INTERPRETATION, JURISDICTION, AND THE AUTHORITY OF LAW', 6 AM. PHIL. ASS'N
NEWSLETTER ON LAW AND PHILOSOPHY (2007)..................................................................................4
J. FINNIS, 'LAW AS CO-ORDINATION' (1989) 2 RATIO JURIS 99............................................................5
G. LAMOND, 'COERCION AND THE NATURE OF LAW' (2001) 7 LEGAL THEORY 35.................................6
ON AUTHORITY.....................................................................................................................................................7
GREEN, 'LEGAL OBLIGATION AND AUTHORITY', IN THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY,
INTRO, S 1........................................................................................................................................ 7
WALLACE, 'PRACTICAL REASON' IN STANFORD ENCYCLOPEDIA OF PHILOSOPHY, INTRO, S 1...................8
*RAZ, PRACTICAL REASON AND NORMS (1975) 35-48.........................................................................9
RAZ, THE MORALITY OF FREEDOM (1986) 41-2, 60-2.......................................................................10
*RAZ, 'AUTHORITY, LAW AND MORALITY' IN HIS ETHICS IN THE PUBLIC DOMAIN (1994).....................11
RAZ, "THE PROBLEM OF AUTHORITY: REVISITING THE SERVICE CONCEPTION", MINNESOTA LAW REVIEW
90 (2006)...................................................................................................................................... 13
*HERSHOVITZ, 'THE AUTHORITY OF LAW' IN MARMOR (ED), THE ROUTLEDGE COMPANION TO
PHILOSOPHY OF LAW (2012)............................................................................................................ 16
GREEN, THE AUTHORITY OF THE STATE (1990) CH 2 (RESERVE)........................................................18
HOLMES, 'THE PATH OF THE LAW' (1897) 10 HARV LR 457.............................................................18
ON COERCION......................................................................................................................................................18
*HART, THE CONCEPT OF LAW, CHS 2-4........................................................................................... 19
DWORKIN, LAW'S EMPIRE, 93-104................................................................................................... 20
*STAVROPOULOS, 'THE RELEVANCE OF COERCION: SOME PRELIMINARIES' (2009) 22 RATIO JURIS 339
...................................................................................................................................................... 21
SCHAUER, 'WAS AUSTIN RIGHT AFTER ALL? ON THE ROLE OF SANCTIONS IN A THEORY OF LAW' (2010)
23 RATIO JURIS 1............................................................................................................................ 22
HART'S THEORY AND REJECTION OF AUSTIN AND BENTHAM'S.............................................................24
*HART, THE CONCEPT OF LAW, CHS 5-7........................................................................................... 24

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Page 1 TEXTBOOK
BIX, CHAPTER 12 "AUTHORITY, FINALITY AND MISTAKE"
Holmes: "the prophecies of what the courts will do in fact, and nothing more pretentious, are what I
mean by law" (The Path of the Law). Thus, should we focus on the rules which are purportedly the basis of decisions, or on the decisions themselves?

ON RAZ'S THEORY OF AUTHORITY
1o Paradox of authority:If authority tells you to do the right thing, then authority adds nothing because you should do the right thing regardless of what authority tells you
If authority tells you to do the wrong thing, then you shouldn't do it because it's the wrong thing
Therefore, authority adds nothing - following authority is inherently irrational.

2o Hobbes believes that there is a second order justification for complying with authority: a world without any political authority (a state of nature) is worse even than living under the authority of a tyrant,
as long as this tyrant does not engage in the wanton murder of his subjects. The monopolisation of force under an authority is better than the alternative of anarchy.
3o Raz aims to avoid both ways of thinking:
I - Raz's theory of authority-He begins by considering theoretical authority (a person who is an authority in respect of some kind of knowledge): rational for you to listen to a doctor and believe what he says about your condition because he has a better understanding of the facts - listening to him serves your interests.
This is the service conception of authority with which Raz explains the rationality of following practical authorities like the law
A doctor mediates between you and the facts - he gives you a prescription instead of a lesson in medicine. The legislature, too, passes a law that everyone must follow after considering all the reasons.
This is the normal justification thesis: an authority is legitimate if you are more likely to act correctly on the balance of reasons that apply to you if you follow the directives of the authority than if you act on your own assessments of the balance of reasons.
II - Raz's authority of lawThe law's most important role is to solve coordination problems (ex. driving on the left of the road,
taxation), even in areas that seem far removed from coordination, ex. the criminal justice system -
it doesn't merely enforce pre-existing moral norms, but coordinates a community's response to crime so as to deal with it in the best possible way.
III - Raz's critique of Dworkin's theory and soft positivismRaz claims that all legal systems claim to be authorities, i.e. they require compliance with their edicts and claim that they do so legitimately. He believes that this undermines Dworkin's theory and soft positivism:
o Dworkin thinks that in order to determine whether a law is valid, particularly in hard cases, will require assessing the moral quality of it in light of a defensible moral-political theory of the law of that jurisdiction

JURISPRUDENCE: AUTHORITY

Page 2 Hard positivism posits that the law is determined by something like a rule of recognition,
which identifies the law on the basis of social facts such as whether Parliament passed an
Act containing the law

Soft positivism holds that though a legal system need not incorporate in its rule of recognition any moral criteria for legal validity, it may do so (ex. if a Bill of Rights introduced a requirement of fair procedure, then what the law is will depend on what the morality of fairness requires)
Raz argues that requiring moral investigation to determine the content of the law is incompatible with the law serving as an authority, because an authority must tell its subjects what they are required to do in more or less certain terms, i.e. mediate between the reasons that apply to the subject's case and the subject himself, telling the subject what to do (executive stage of practical reason) rather than to figure out what to do himself taking into consideration the relevant facts and moral considerations (the deliberative stage of practical reason). To so so is to abdicate authority in that area of human activity.
Dworkin replies that Raz's conception of "authority" is too narrow - such a broad directive as "act honestly and fairly" can be authoritative in that the recipient can alter his behaviour in an attempt to conform with it, whatever it may require.
o-

ON BENTHAM AND AUSTIN'S COMMAND THEORY
Bentham's definition of law is often summarized as "the command of a sovereign backed by threats" but this is unduly simplified: he defines law as "an assemblage of signs declarative of a volition ... adopted by the sovereign in a state, concerning the conduct to be observed ... by ... persons ... supposed to be subject to his power, ... trusting for its accomplishment to the expectation of certain events ... the prospect of which it is intended should act as a motive upon those whose conduct is in question".
There are elements of command, sovereignty and sanction. On the surface this seems obvious: laws are imperatively expressed and both prescriptive and normative in their effect.
I - Command
Principal difficulty is the literality with which the concept is taken, the personalized form in which the
"command" is taken to be in.Laws commanded by dead members of the Sovereign are nevertheless law though apparently not commanded by the present sovereign
Some laws are made on a delegated basis (judicial precedent and appointed competences).

Bentham explains these as acts of "adoption" and tacit command - "susception" (where the mandate has already been issued) by not repealing and "pre-adoption" (where the mandate has not yet been issued) of future acts of subsidiary bodies thorugh authorization.
Hart's criticism: legislation is a process the products of which are identified according to criteria of recognition without need for "adoption".
Also, not all laws are orders: some are facilitative (ex. contracts).
II - Sovereign
Bentham wasn't concerned with a "right to rule" - his idea of the sovereign is the fact of rulership. He defines it as "any person or assemblage of persons to whose will a whole political communiy are (no matter on what account) supposed to be in a disposition to pay obedienc: and that in preference to the will of any other person".The factual (or supposed) habit of obedience is key - not the cause.

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Bentham adds that a sovereign must not be subject to any other sovereign (though its powers may be subject to political and practical limitations): its power is "incapable of legal limitation".
o For Austin, constitutional laws that seek to limit sovereign powers are thus mere "guides",
a form of "positive morality" and not "laws properly so called"
o Bentham adopted a more flexible approach that allows limitations through a
"transcendant law" (a sort of self-denying ordinance by the sovereign) such as an "express convention" (i.e. "where one state, has, upon terms, submitted itself to the government of another: or where the governing bodies of a number of states agree to take directions in certain specified cases, from some body or other that is distinct from all of them")

Much of the problem with this analysis is the personification of "sovereign", the analogy between a sovereign and an individual, ignoring the fact that sovereignty is an expression of a process that is part of the legal order: the lack of distinction between the authoritative process and pure imperation is a great lacuna addressed in the revised positivism of Hart.
III - Sanctions
Bentham sees the obligation to obey law as consisting of simply the anticipation of political consequences (imposed by the sovereign) attached to non-compliance or (to a lesser extent) compliance:
he divides these consequences into coercive sanctions (threaten an unpleasant consequence in case of disobedience) and alluring sanctions (beneficial consequences in case of compliance).-

This is a probabilistic concept of obligation as there is no certainty that a given sanction will be effective in a given case; the motivation acts through the expectation of entailed consequences rather than through the certainty of them
The consequence is itself imposed by the sovereign

Austin didn't make this distinction: "it is the power and the purpose of inflicting eventual evil, and not ...
of imparting eventual good, which gives to the expression of a wish the name of a command". He accepts that a promised reward may be a motive for compliance, but if law is to be categorised as "command",
then the sanction must be negative.
Within the command theory, this is not negligible, but the problem is that it doesn't fit in a lot of places,
ex. Austin says that the formality requirements for making a will is accompanied by the negative sanction of failure of the will if not complied with, but this analysis doesn't fit because the people who are
"punished" is not the testator but the innocent beneficiaries. As such, the requiremnts are "instructions"
for attaining a given objective, i.e. the disposal of property after death.
Thus, Austin fails to expose the facilitative side of the law: the person who fails to follow formality requirements in making a will is not fully punished, but merely fails effectively to take advantage of the recognized facility offered and guaranteed by the state.

INTRODUCTION
Joseph Raz argues that the law claims to have authority and that this a defining characteristic of a legal system. Like Hart, he rejects the 'command theory' of Jeremy Bentham and John Austin, who argued that coercion is a necessary part of law and the ground of legal obligation. For Raz a legal system could exist entirely without coercion in a 'society of angels'. Thus, for Raz it is necessary that law claims authority but not that it makes threats, whereas for Bentham it is necessary that law makes threats but not that it claims authority. This lecture will explore (i) what claims law makes; (i) what, if anything, gives law legitimate authority; and (iii) the relationship between authority and coercion.

BACKGROUND READING

JURISPRUDENCE: AUTHORITY

Page 4 T. ENDICOTT, 'INTERPRETATION, JURISDICTION, AND THE AUTHORITY OF LAW ',
6 AM. PHIL. ASS'N NEWSLETTER ON LAW AND PHILOSOPHY (2007)
Raz thinks that authority "includes the capacity to direct people's conduct to the exclusion of considerations that would otherwise be good reasons for action".
I - Authority and autonomy
Is this in conflict with autonomy? Endicott argues that it is not, that authority can serve autonomy,
because autonomous judgment is needed to determine the jurisdiction of an authority and to determine the exclusionary scope of its directives.
For Raz, the law's authority is a "protected reason" - it includes a reason to act in the way the law prescribes, and an "exclusionary" reason not to act on the reasons that go against it. It doesn't simply add reasons to the balance.
Is this consistent with autonomy? You may say no because of both jurisdiction (the law's capacity to exclude consdierations that would otherwise be genuinely relevant), and scope (a particular directive specifically detracts from autonomy by excluding relevant considerations).
But neither need be universal: authority necessarily violates autonomy only if we exaggerate the generality of one or both of these features.-

Scope: According to Raz, "exclusionary reasons may vary in scope; they may exclude all or only some of the reasons which apply to certain practical problems". The law may specifically tell you what considerations to exclude (ex. if your mother tells you not to leave the house to play with
Steve), but if it doesn't (ex. if she just said "stay in the house") it would be absurd to thereby conclude that the law intended to exclude all other considerations, or to give you a conclusive reason (ex. if the house burst into flames you should obviously still leave). So how should you interpret directives? This is not a question of what your mother said or intended, but what to make of the fact that she directed you to stay in the house - the effect of what she did, the purpose over which she exercised authority over you. You can't go outside simply because, without her directive, there'd be good reason to do so, but on the other hand you can't stay in the house if it goes against the purpose of the exercise of authority.
Jurisdiction: if your mother specifically excludes the emergency consideration ("stay in the house even if it catches on fire") then she acted outside her jurisdiction, by claiming authority to exclude a consideration. But then what considerations can she authoritatively exclude? This is a question of the justification of authority - Raz's "normal justification thesis" says that a criterion for justification is that the subject can "better conform to reasons that apply to him anyway" by using the authority's directives as a guide. But it's dangerous to generalize about the jurisdiction of authorities (we can't even say that authority cannot exclude emergency considerations).
Nevertheless, we can say that an authority has the widest jurisdiction for which the normal justification thesis is satisfied.

What is authority anyway?-

If you accept the legitimacy of an authority, you are committed to following it blindly, save to the extent of being sensitive to the presence of non-excluded considerations and the possibility of overstepping its authority?
Acceptance of authority has to be justified, and this normally means meeting the conditions in the justification thesis (Raz)

Endicott says it's both, and as such, by subjecting to authority, you need not, on Raz's account, amount to abandoning your autonomy because you need to assess:whether the source of the directive has legitimate authority

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the authority's jurisdiction (and of whether the directive is within that jurisdiction)
the scope of the directive (i.e., the range of reasons excluded by the directive)
the import of any unexcluded reasons (and how to resolve any conflict between them and the directive)
whether an exclusionary reason is defeated by another second-order reason.

Thus, merely subjecting oneself to the law is not abandoning your autonomy - but does law claim an authority incompatible with autonomy?
II - The extent of the law's claim to authority
Raz thinks that law claims unlimited authority; Endicott argues that though law may not acknowledge limits to its authority, it need not claim unlimited authority either: it claims an unspecified jurisdiction,
and its directives may have unspecific exclusionary scope.
Does law necessarily violate autonomy? What is law claiming when it claims authority?
All legal systems purport not only to require or to prohibit conduct but to regulate the life of a community
---to impose a normative order. As such, Raz thinks that the law's claim to authority is unlimited; but according to Endicott, the law claims merely an unspecified jurisdiction, and legal directives often have an unspecific exclusionary force (like your mother).
III - Conclusion: can people be autonomous if they are subject to the authority of law?
(Yes)
Endicott thinks that laws often violate autonomy, but nothing in the nature of law violates autonomy; its artificial, systematic nature creates a risk that the law of a particular system will do so.

J. FINNIS, 'LAW AS CO-ORDINATION' (1989) 2 RATIO JURIS 99
Law's authority is explained by law's function as providing solutions to co-ordination problems (not in the game-theoretical sense, but in the legal sense, the difference being that in legal co-ordination problems,
the solution, once identified, is relatively stable, for it is preferred by all to the absence of a solution;
game-theoretical co-ordination problems are presented in fully bounded situations and transitive rankings, in that the ranking of a real-life action x will depend on different and competing factors that are not commensurable apart from particular scales of assessment that one chooses to adopt and employ).
According to Finnis, the law makes itself salient in identifying and solving particular co-ordinating problems not by the merits of its particular solutions, but by having the features characteristic of the law:
1) It presents itself as a seamless web by forbidding its subjects to pick and choose 2) The procedural features of law give reason for regarding it as authoritative in identifying and solving co-ordination problems
Therefore, the legal order generates a shared interest which gives everyone moral reason to collaborate with the law's co-ordination solutions (i.e. to regard it as morally authoritative) - this shared interest being in the regular, impartial upholding of the law itself.
Raz replies that this is an oversimplification, for individuals who understand the situation will on occasion have no reason to conform to legal requirements that are ill-suited to the goal of the coordination, and since some breaches will never become known or otherwise will violate the interest of the individual only, this non-conformity will not threaten the effectiveness of government and the law.
Finnis replies: the point of the law is not merely to ensure the survival of government or the future conformity of the potentially recalcitrant; it also maintains real (not merely apparent) between members of a community, and this is unaffected by the detection or covertness of breaches.
JURISPRUDENCE: AUTHORITY

Page 6 In conclusion: generally speaking, an individual acts most appropriately for the common good not by trying to estimate the needs of the community "at large," nor by second-guessing the judgments of those who are directly responsible for the common good, but by performing his particular undertakings and fulfilling his other responsibilities to the ascertained individuals who have contractual or other rights correlative to his duties. For the common good simply is the good of individuals living together and depending upon one another in ways that tend to favour the well-being of each.

G. LAMOND, 'COERCION AND THE NATURE OF LAW ' (2001) 7 LEGAL THEORY 35
Argues that the claim that law is necessarily coercive because it must be efficacious is mistaken---not necessarily on sociological or psychological grounds, but because it identifies law with the preconditions for its existence. On the other hand, the argument that law's normativity is inherently linked to coercion contains an important truth---not because coercion is necessary to account for normativity, but because the scope of law's claim to authority encompasses the right to authorize the use of coercion.
Hart's critique of the command theory is that coercion is not the key to understanding law and legal systems (so you should shift the focus to law's institutional and nromative structures), not that legal systems are not coercive. Indeed the argument that coercion is not in the nature of law is a minority position.
What is meant by the claim that the law is inherently coercive?
1) Legal systems contain enforcement institutions (police etc.) ? subsidiary, not addressed here 2) The law authorizes the use of physical force (forcible arrest and detention, seizure of property)
3) The law prescribes sanctions for breaches of various laws
Do the second and third features make the law coercive?They automatically do, because saying that law is coercive is a shorthand of alluding to these two features
Or you must assess the claim against the best account of the nature of coercion.
I - What is coercion?

The core notion of coercion is "of one person's forcing or making another do as the former wills, through bringing pressure to bear on the latter", the pressure being physical force or the prosect of some disadvantage being imposed (i.e. a forced choice, because the choice situation is imposed by another and the system is designed so that only one option is regarded as acceptable)
Beyond this, opinions differ:-

Coercion involves any use of pressure that is sufficient in the circumstances to make someone do what he would not otherwise do, and is deliberately imposed for that purpose - the emphasis is on the deliberate interference with the person or threat to deliberate damage their interests
More restricted view: one is only "coerced" when, in addition, the pressure involves the actual or threatened violation of one's rights - the emphasis is on whether this interference violates their rights

This article will assume the first view because 1) some think that people can be wronged in ways additional to having their rights violated and 2) it doesn't requrie an account of what rights people have.
Note that it is the provision for the enforcement of the sanction that renders it coercive, not the sanction itself.
II - The connection between authority and coercion

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