#16139 - Law As Authority - Jurisprudence

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

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?

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 law

• The 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 positivism

• Raz 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:

  • 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

  • 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.

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.

• 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”.

  • 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”

  • 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...