Can Raz’s Pre-Emption Thesis Survive under a Dworkinian Theory of Law and Adjudication?

Abstract

Margaret Martin’s Judging Positivism provides one of the best reconstructions and one of the most intriguing criticisms ever raised to Joseph Raz’s influential jurisprudence. In one of the central moves of her argument, Martin challenges a central tenet of Raz’s jurisprudence, which is the attempt to combine the preemption thesis with the normal justification thesis. While the former requires citizens and officials to exclude from deliberation any first-order reason for action a person may have, the latter invites considerations of legitimacy that cannot be assessed with independence from the first-order reasons the preemption thesis was meant to exclude. In this critical comment, I grant Martin’s critique that these two theses cannot be accepted as conceptual claims. Nevertheless, I suggest that there remains some room to harmonize the two theses if they are accepted on normative grounds. If there is a good normative argument to treat legal reasons as an intermediate level of reasons for action, there may be some circumstantial reasons for treating institutional reasons as preemptive in the sense that Raz defends in his general theory of law.