Revisiting Raz
a Reply
DOI:
https://doi.org/10.5347/isonomia.v0i55.489Keywords:
Raz, methodology, natural law, positivism, authority, adjudicationAbstract
In Judging Positivism, I argue that Joseph Raz has changed his position over time and that these changes produced inconsistencies and incoherencies in his mature position. The key claim that sets the argument in motion is the following : Raz’s account of legal systems in Practical Reasons and Norms (PRN) is grounded in, and dependent on, the claim that judges have a duty to apply the law. It is a positivistic account of law that springs from a positivistic account of adjudication. Problems emerge for Raz when he introduces moral elements into his positivistic account of law. More specifically, I explore the difficulties Raz encounters when he combines his pre-emption thesis with a moral theory of adjudication in Ethics in the Public Do-main, and a morally robust theory of authority in TheMorality of Freedom. André Coelho and Jorge Fabra-Zamora take issue with my critique of Raz’s account of adjudication, while Tho-mas Bustamante focuses his commentary on my analysis of Razian authority. In the course of responding to my critics, I revisit my interpretation of PRN, while exploring the foundational assumptions at play in the exchanges. I reject the possibility that all foundational assumptions are equally valuable: non-normative conceptual analysis is, in my opinion, not a viable metho-dology. I also explore the difficulties of Raz’s account of authority: while the ambiguity found in his core theses may account for its appeal, upon closer inspection, Raz struggles to keep any distance between himself and his intellectual adversaries, including Bentham and the natural lawyers.
References
Bentham, Jeremy, 1977: A Comment on the Commentaries and A Fragment on Government, Burns, J. H. and H. L. A. Hart (eds.). Oxford, Clarendon.
Bustamante, Thomas, 2020: “Revisiting the Idea of Protestant Interpretation: Towards Reconciliation between Dworkin and Postema”, in Bustamante, Thomas and Decat, Thiago (eds.), Philosophy of law as an integral part of philosophy: Essays on the jurisprudence of Gerald J. Postema. Oxford, Hart Publishing, pp. 113-139.
________, 2021a: “Can Raz’s Pre-Emption Thesis Survive Under a Dworkinian Theory of Law and Adjudication?”. Isonomía, Vol. 55, pp. 179-191.
________, 2021b: “Understanding Bentham’s Theories of Meaning and Publicity”. JOTWELL - Journal of Things We Like (Lots), May 28, 2021 (reviewing Gerald J. Postema, Utility, Publicity and Rights: Essays on Bentham’s Moral and Legal Philosophy (2019)), https://juris.jotwell.com/understanding-benthams-theories-of-meaning-and-publicity/.
________, 2021c: “Is Protestant Interpretation an Acceptable Attitude Toward Normative Social Practices? An Analysis of Dworkin and Postema”. The American Journal of Jurisprudence, Vol. 66, forthcoming. https://doi.org/10.1093/ajj/auab004.
Bustamante, Thomas et al, 2020: “Interview with Professor Gerald J. Postema”, in Bustamante, Thomas and Decat, Thiago (eds.), Philosophy of law as an integral part of philosophy: Essays on the jurisprudence of Gerald J. Postema. Oxford, Hart Publishing, pp. 301-318.
Coelho, Andre, 2021: “Elephants and Flashlights: On Martin on Raz”. Isonomía, Vol. 55, pp. 168-178.
Hart, H.L.A., 2012: The Concept of Law, 3rd edn. Oxford, Oxford University Press.
Fabra-Zamora, Jorge, 2021: “Legal Positivism as a Theory of Law’s Existence: A Comment on Margaret Martin’s Judging Positivism. Isonomía, Vol. 55, pp. 192-211.
Finnis, John, 1980: Natural Law and Natural Rights. Oxford, Clarendon Press.
________, 1984: “The Authority of Law in the Predicament of Contemporary Social Theory”. Journal of Law, Ethics and Public Policy, Vol. 1, pp. 115-137.
Martin, Margaret, 2014: Judging Positivism. Oxford, Hart Publishing.
________, 2020a: “Persuade or Obey: Crito and the Preconditions for Justice”, in: Bertea, Stefano (ed.), Contemporary Perspectives on Legal Obligations. London, Routledge, pp. 153-172.
________, 2020b: “Postema on Hart: the illusion of value-neutrality”, in: Bustamante, Thomas and Decat, Thiago (eds.), Philosophy of law as an integral part of philosophy: essay on the jurisprudence of Gerald J. Postema. Oxford, Hart Publishing, pp. 193-211.
________, 2021: “Method Matters: Non-Normative Jurisprudence and the Re-Mystification of the Law,” in Fabra-Zamora, Jorge L. and Villa, Gonzalo (eds.), Elucidating the Concept of Law: Contemporary Disputes. Springer forthcoming.
________, 1998: “Jurisprudence as Practical Philosophy”. Legal Theory, Vol. 4, pp. 329-358.
________, 2015: “Jurisprudence, The sociable Science”. Virginia Law Review, Vol. 101, pp. 869-901.
________, 2019a: Bentham and the Common Law Tradition, 2nd edn. Oxford, Oxford University Press.
________, 2019b: Utility Publicity and Rights: Essays on Bentham’s Moral and Legal Philosophy. Oxford, Oxford University Press.
Priel, Dan, 2013: “Reconstructing Fuller’s Argument Against Legal Positivism”. Canadian Journal of Law and Jurisprudence, Vol. 26, pp. 399-413.
Raz, Joseph, 1986: The Morality of Freedom. Oxford, Oxford University Press.
________, 1994: Ethics in the Public Domain. Oxford, Oxford University Press.
________, 1999: Practical Reason and Norms, 2nd edn. Oxford, Oxford University Press.
________, 2009: Between Authority and Interpretation. Oxford, Oxford University Press.
Simmonds, N. E., 2007: Law as Moral Idea. Oxford, Oxford University Press.
________, 2011: “The Nature of Law: Three Problems with One Solution”. German Law Journal, Vol. 12 (1), pp. 601–624.
Waldron, Jeremy, 2008: “The Concept and the Rule of Law”. Georgia Law Review, Vol. 43, pp. 1-61.
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