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

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 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.

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...

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