Raz's Argument On Legitimate Authority
Raz’s argument from legitimate authority to the sources thesis is not sound. I make that argument in Part II after, in Part I, reconstructing Raz’s argument.
I
Does law claim legitimate authority? Raz says it does. Adhering to the prevailing view in jurisprudence, Raz appears to agree that legitimate authority consists in a right to rule paired with a correlative obligation among the authority’s subjects to obey. This talk of “rights” and “obligations” differs legitimate authority from illegitimate authority, and since the legal systems with which we are familiar do claim such a right (entailing our obligation to obey), it follows that they claim legitimate authority.
Fair enough. The next premise in Raz’s reasoning, albeit an implied one, is this: Any claim to legitimate authority—that is, a claim to possess the right to rule—must be justified. This follows from the absurdity of its logical opposite. The notion that a person or government may simply claim and ipso facto have the right to rule would have the absurd consequence of bestowing legitimacy on any regime, even the most despotic, that claims authority. Indeed, if Adolf Hitler had a right to rule (one believes he at least claimed to have it), then Nazi officials serving under him were in fact morally obligated to carry out the Holocaust. I take it for granted that no one believes this. …show more content…
So the question then becomes, what conditions must be met for legitimate authority to obtain? There is more than one answer, according to Raz, but the common answer, presented in his ‘normal justification thesis,’ is “that a person has authority over another person” when “the alleged subject is likely better to comply with reasons which apply to him ... if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.” The idea here is that “if we will do better by following an authority than by working out what to do on our own, the authority is legitimate for us.”
Why does Raz settle on this criterion—helping us act correctly for the right reasons—for legitimate authority? His approach is inductive. Consider the case of two friends, Chip and Dale, one of whom (Dale) gives advice to the other (Chip). Suppose Chip takes Dale’s advice but only because he knows Dale will be offended if he does not. Dale’s advice is not being accepted because of its merits; it is being accepted “as a way of being kind to a friend.” Normally, one accepts advice because she judges it to be good advice.
Such is human behavior: We have reasons to do things and not to do things, and we generally act according to the balance of our reasons.
In the ordinary case, I accept advice when a person whose judgment I respect has heard my reasons for and against a particular action and has rendered a verdict on the question. Raz’s normal justification thesis builds on this intuition: If some entity claiming authority X can do a better job than I of hearing and adjudicating my reasons for action regarding some action, then it has authority over me insofar as that action is concerned. X, in other words, has a right to rule over
me.
Moreover, for Raz, when X tells me what to do, its judgment is to be taken not as another reason to perform or abstain from the action as prescribed, but as an adjudication of all the underlying reasons for doing so. Consider an arbitrator. Those who come before an arbitrator agree to heed his proposed resolution “because he says so.” His decision is thought to “sum...up” each individual’s reasons for action and deliver the verdict, so to speak, on what action ought to be performed given the reasons at play. This adjudicative role of authority yields Raz’s preemption thesis: “The fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.”
Given that feature of Razian authority, we can make the case that the sources thesis follows. The sources thesis is the view that “the existence and content of law depends on its sources and not on its merits.” Yet what we established above is that, as far as citizens are concerned, the content of law does not depend on its merits. A legitimate authority’s statement of law is analogous to the arbitrator’s final adjudication in that the reasons underlying it are not to be relitigated. This is the case even when we have reason to believe that the legitimate authority has made a mistake, both because questioning the authority eliminates the advantage of accepting it as such and because we presume that the authority is better than its subjects at discerning what is best. For Raz, then, we can reject all views of law that make its identification contingent on an individual evaluation of its moral righteousness.
Insofar, then, as the sources thesis claims that the existence and content of law does not depend on law’s merits, Raz’s conception of authority vindicates it. The remainder of the sources thesis claims that law can be identified by reference to the particular sources that are accepted as a matter of social fact as statements of law, and this is an idea to which few philosophers object. All that is needed to square it with Razian authority is that the sources of law must be entrusted, per the normal justification thesis, to adjudicate people’s reasons for behavior mostly better than each individual him or herself can.
II
Raz’s argument is not sound. One source of difficulty I have with it I share with Darwall: An ability to superiorly adjudicate reasons does not entail a right to rule.
Consider the facts of a recent U.S. Supreme Court case. A lawyer, English, was tasked with defending a man, McCoy, accused of murder. English admitted in court, contrary to McCoy’s wishes, that McCoy did in fact kill the people he was accused of killing. English’s admission was based on his “experienced-based view ... that confessing guilt [would] offe[r] [McCoy] the best chance to avoid the death penalty.” But McCoy had vociferously maintained his innocence. On Monday of this week, the U.S. Supreme Court ruled that McCoy’s “right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt” was denied in this case.
On these facts, that English knows best how to achieve what is in McCoy’s interest is clear. But I do not have the intuition, nor does the Supreme Court’s opinion suggest, that English has any kind of authority over McCoy on this ever-important question. In deciding how to fight for his livelihood, is McCoy morally obligated to accept English’s advice? I doubt it.
Raz concedes, “no legitimate authority can be based on superior knowledge alone.” Raz shifts his position to say that the normal justification thesis is satisfied where “the act of instruction in part determines that the instructed act is the right thing to do.” This is the case in coordination problems, where the mere utterance of a universal rule—e.g. that all cars are to drive on the right side of the road—is itself socially beneficial. But it seems that the duty we have in these cases is owed not to our rulers but to the people with whom we are coordinating; their livelihoods and safety compel our compliance. But here again, “Raz must explain how it is that an authority acquires the right to bind subjects simply in virtue of the fact that they would be foolish not to treat it as if it had that right.”
Raz does offer such an explanation, proffering that an authority’s interest in being a good authority can ground the right to rule. But English undoubtedly had an interest in his being a good authority for McCoy, and yet he does not seem to possess a right to rule. Moreover, how do we know when an authority’s interest is strong enough to ground that right? Is a heartbroken person entitled to the companionship of the person whom he so strongly desires? No, despite his having an interest in his affection’s being requited. So, if interests can ground rights, we must know what distinguishes rights-bestowing interests from other interests. Such an account is not given.
* * *
Raz’s account fails, then, because it does not provide an explanation as to why subjects are obligated to obey more enlightened authorities. Raz makes a good case that it is often in our interest to obey these authorities, but I remain far from convinced that one is obligated to obey them. These concerns tarnish Raz’s normal justification thesis and so inflict a fatal wound on the entire argument. This does not mean that Raz’s conclusion is wrong, but it does mean that one must find a different way to reach it.
I
Does law claim legitimate authority? Raz says it does. Adhering to the prevailing view in jurisprudence, Raz appears to agree that legitimate authority consists in a right to rule paired with a correlative obligation among the authority’s subjects to obey. This talk of “rights” and “obligations” differs legitimate authority from illegitimate authority, and since the legal systems with which we are familiar do claim such a right (entailing our obligation to obey), it follows that they claim legitimate authority.
Fair enough. The next premise in Raz’s reasoning, albeit an implied one, is this: Any claim to legitimate authority—that is, a claim to possess the right to rule—must be justified. This follows from the absurdity of its logical opposite. The notion that a person or government may simply claim and ipso facto have the right to rule would have the absurd consequence of bestowing legitimacy on any regime, even the most despotic, that claims authority. Indeed, if Adolf Hitler had a right to rule (one believes he at least claimed to have it), then Nazi officials serving under him were in fact morally obligated to carry out the Holocaust. I take it for granted that no one believes this. …show more content…
So the question then becomes, what conditions must be met for legitimate authority to obtain? There is more than one answer, according to Raz, but the common answer, presented in his ‘normal justification thesis,’ is “that a person has authority over another person” when “the alleged subject is likely better to comply with reasons which apply to him ... if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.” The idea here is that “if we will do better by following an authority than by working out what to do on our own, the authority is legitimate for us.”
Why does Raz settle on this criterion—helping us act correctly for the right reasons—for legitimate authority? His approach is inductive. Consider the case of two friends, Chip and Dale, one of whom (Dale) gives advice to the other (Chip). Suppose Chip takes Dale’s advice but only because he knows Dale will be offended if he does not. Dale’s advice is not being accepted because of its merits; it is being accepted “as a way of being kind to a friend.” Normally, one accepts advice because she judges it to be good advice.
Such is human behavior: We have reasons to do things and not to do things, and we generally act according to the balance of our reasons.
In the ordinary case, I accept advice when a person whose judgment I respect has heard my reasons for and against a particular action and has rendered a verdict on the question. Raz’s normal justification thesis builds on this intuition: If some entity claiming authority X can do a better job than I of hearing and adjudicating my reasons for action regarding some action, then it has authority over me insofar as that action is concerned. X, in other words, has a right to rule over
me.
Moreover, for Raz, when X tells me what to do, its judgment is to be taken not as another reason to perform or abstain from the action as prescribed, but as an adjudication of all the underlying reasons for doing so. Consider an arbitrator. Those who come before an arbitrator agree to heed his proposed resolution “because he says so.” His decision is thought to “sum...up” each individual’s reasons for action and deliver the verdict, so to speak, on what action ought to be performed given the reasons at play. This adjudicative role of authority yields Raz’s preemption thesis: “The fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.”
Given that feature of Razian authority, we can make the case that the sources thesis follows. The sources thesis is the view that “the existence and content of law depends on its sources and not on its merits.” Yet what we established above is that, as far as citizens are concerned, the content of law does not depend on its merits. A legitimate authority’s statement of law is analogous to the arbitrator’s final adjudication in that the reasons underlying it are not to be relitigated. This is the case even when we have reason to believe that the legitimate authority has made a mistake, both because questioning the authority eliminates the advantage of accepting it as such and because we presume that the authority is better than its subjects at discerning what is best. For Raz, then, we can reject all views of law that make its identification contingent on an individual evaluation of its moral righteousness.
Insofar, then, as the sources thesis claims that the existence and content of law does not depend on law’s merits, Raz’s conception of authority vindicates it. The remainder of the sources thesis claims that law can be identified by reference to the particular sources that are accepted as a matter of social fact as statements of law, and this is an idea to which few philosophers object. All that is needed to square it with Razian authority is that the sources of law must be entrusted, per the normal justification thesis, to adjudicate people’s reasons for behavior mostly better than each individual him or herself can.
II
Raz’s argument is not sound. One source of difficulty I have with it I share with Darwall: An ability to superiorly adjudicate reasons does not entail a right to rule.
Consider the facts of a recent U.S. Supreme Court case. A lawyer, English, was tasked with defending a man, McCoy, accused of murder. English admitted in court, contrary to McCoy’s wishes, that McCoy did in fact kill the people he was accused of killing. English’s admission was based on his “experienced-based view ... that confessing guilt [would] offe[r] [McCoy] the best chance to avoid the death penalty.” But McCoy had vociferously maintained his innocence. On Monday of this week, the U.S. Supreme Court ruled that McCoy’s “right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt” was denied in this case.
On these facts, that English knows best how to achieve what is in McCoy’s interest is clear. But I do not have the intuition, nor does the Supreme Court’s opinion suggest, that English has any kind of authority over McCoy on this ever-important question. In deciding how to fight for his livelihood, is McCoy morally obligated to accept English’s advice? I doubt it.
Raz concedes, “no legitimate authority can be based on superior knowledge alone.” Raz shifts his position to say that the normal justification thesis is satisfied where “the act of instruction in part determines that the instructed act is the right thing to do.” This is the case in coordination problems, where the mere utterance of a universal rule—e.g. that all cars are to drive on the right side of the road—is itself socially beneficial. But it seems that the duty we have in these cases is owed not to our rulers but to the people with whom we are coordinating; their livelihoods and safety compel our compliance. But here again, “Raz must explain how it is that an authority acquires the right to bind subjects simply in virtue of the fact that they would be foolish not to treat it as if it had that right.”
Raz does offer such an explanation, proffering that an authority’s interest in being a good authority can ground the right to rule. But English undoubtedly had an interest in his being a good authority for McCoy, and yet he does not seem to possess a right to rule. Moreover, how do we know when an authority’s interest is strong enough to ground that right? Is a heartbroken person entitled to the companionship of the person whom he so strongly desires? No, despite his having an interest in his affection’s being requited. So, if interests can ground rights, we must know what distinguishes rights-bestowing interests from other interests. Such an account is not given.
* * *
Raz’s account fails, then, because it does not provide an explanation as to why subjects are obligated to obey more enlightened authorities. Raz makes a good case that it is often in our interest to obey these authorities, but I remain far from convinced that one is obligated to obey them. These concerns tarnish Raz’s normal justification thesis and so inflict a fatal wound on the entire argument. This does not mean that Raz’s conclusion is wrong, but it does mean that one must find a different way to reach it.