On the Concept of Authority and the Unity of Practical Reason

2012

The debates about the interrelations between reason and law have undergone a change after the eighteenth century. References to the recta ratio of jusnaturalistic tradition have not disappeared, but other comprehensions of legal reason have developed. The European debate over legal positivist science has contributed to this in a manifestation of the rationality of law. This transformation may be considered the basis for the development of true “legal technologies” throughout the twentieth century. On the other hand, in the context of theories of positive law which have taken the relation between ethics and legal reason as a problem, the formation of discourses on coercion (Austin and Holmes), on validity (Kelsen and Hart) and on justification (Alexy and Dworkin) has also contributed to the emergence of new models of legal rationality. In this paper, it is highlighted that the construction of these models is linked to the “points of view” which theories have proposed as legitimate fo...

Social Science Research Network, 2012

In this paper I shall argue, following Frederick Schauer, that attempting to move theoretically from-the-necessary-to-the-important may hinder our understanding of law. I shall further argue that attempting to move from-the-important-to-thenecessary may well be a more promising route for advancing our understanding of law as an interpretive practice which is not merely important or valuable but morally important or valuable and even necessary, as Ronald Dworkin has

2025

This open access book introduces the first systematic approach to the debate on the unity or fragmentation of practical reasoning and its profound implications for legal philosophy. Bringing together some of the foremost legal philosophers from the Hispanic-Latin world, the book presents a thoughtful dialogue with the Anglo-American literature, making it of interest to scholars from both cultural traditions. Although the topic is rarely discussed explicitly and systematically, it is pivotal to ongoing debates about legal normativity, the nature of law, legal authority, and the rationale behind legal decisions. This book fills this gap by providing a comprehensive perspective that illuminates the intersections between the philosophy of law and the philosophy of practical reasoning. It analyses law from the perspective of the agent and offers deep insights into critical issues in the field of law. The volume is divided into four parts. The 1st part addresses the question of the nature of reasons and the unity of practical and theoretical reasoning. The 2nd part deals with the question of whether practical reasoning works in a unified or fragmented way. The 3rd section examines the autonomy of legal normativity in relation to morality and other normative domains. In the 4th and concluding section, the authors analyse the implications of the thesis of the unity of practical reason for legal decision-making and the authority of law.

Jurisprudence, 2011

The main argument of this essay is that explaining the reasons for complying with a practical authority is a two-stage affair: the special, practical import of a practical authority's directive can only be explained on the background of a social or institutional setting that constitutes the authority's power and the corresponding obligation of its subjects to comply. However, this obligation is not an all things considered obligation, it is conditioned on reasons to participate in the relevant institution or practice. A complete account of the reasons to regard authoritative decisions as binding must also rely on the reasons for having the institution or practice in question and the kind of authoritative structure that it has. Such a general account might well be based on Raz's service conception of authority. My main point, however, is to show that there must be some institutional setting that mediates between the general reasons for having the relevant kind of authority, and the practical difference that the authority makes on particular occasions. The Initial Dilemma Consider the kind of claims legal authorities typically make: when the law requires you to do (or refrain from doing) something, it conveys a twofold message: you ought to do it, and you ought to do it because the law says so. This twofold message demonstrates several intuitive features that we tend to associate with practical authorities in general. First, a practical authority is there to make a difference to the reasons for action its subjects have. Second, this difference typically consists of a duty or an obligation, in some relevant sense, to do whatever it is that the authority prescribes. Finally, this obligation is supposed to follow from the "say so" of the authority; you ought to do it because the authority says so. The age old question that arises here is, why would one ever have an obligation to do something on the say so of another? However, even if we bracket, for now, the obligatory nature of the reasons to comply with a practical authority, a dilemma presents itself: Suppose that A is a putative authority vis a vis B and directs B to ϕ in context C. Now, either there are valid reasons for B to ϕ in C, that is, independently of A's instruction, or there are 1 I will, actually, qualify this statement in a moment. 2 Some writers are satisfied with this option, claiming that this is all that practical authorities do. In effect, however, such a view entails that there is no significant difference between practical and theoretical authorities. I will assume here, without much argument, that this view is mistaken. On the difference between practical and theoretical authorities, see, for example, Raz "The Problem of Authority: Revisiting the Service Conception", in his Between Authority and Interpretation, ch 5 (Henceforth: "Revisiting…")

ethic@ - An international Journal for Moral Philosophy

From a critical review of the literature, we analyze the incompatibility between the possibility of incorporating moral principles to the law and its authoritative nature, as argued by exclusive positivists, such as J. Raz. After presenting his argument in second section, we argue in the third section that it is incompatible with commonly accepted (even by Raz) premises of the theory of legal interpretation, or else it would lead to contradiction - unless one presupposes, within the premises, a strong version of the sources thesis (which is what Raz intends to prove). In conclusion, we return to the arguments presented, concluding with a possible difficulty for the adoption of exclusive positivism by people inside a legal practice.

Laws, 2019

This paper intends to set out an argument to Legal Idealism and a thesis that holds law and morality as necessarily connected. My focus is on deconstructing the Positivist argument to the Autonomy Thesis and beginning to reconstruct it through the application of morality to law’s autonomous authority. My aim, ultimately, is to demonstrate how, through the concept of law, practical reason might explain the related (and overlapping) notions of legitimacy, authority, and the obligation to obey through the necessary connection of law and morality. That is, I intend to demonstrate that morality both survives and remains identifiable (transparently) following the process of metamorphosis into institutionalised practical reasoning. If this is so, the authority of and obligation to law is simultaneously a form of morally rational obligation. In the response to the Positivist argument that moral values are incommensurate, I will show that this commensurability can be determined ‘artificially’ by a system of institutionalised reasoning (i.e., the law); this is to say, if I can show that the Legal Positivist argument is left incomplete without some explanation of moral values underpinning it, I need not to show that a specific, defensible moral truth or principle is required, but that an artificial weighting of abstract moral principles is sufficient

Agency, Cambridge University Press, 2015, 331pp., $95.00 (hbk), ISBN 9781107070721. Reviewed by Jonathan Crowe, University of Queensland This is one of those books where the papers from a conference session are gathered together in an edited volume. Books of this kind suffer from two common flaws: the theme may turn out to be too broad to produce a coherent set of papers and the contributions may prove to be of uneven quality. I am pleased to report that the present book avoids both these pitfalls. The essays are tightly grouped around a set of topical and important issues in theories of practical reasoning and philosophy of law. The contributions are uniformly very strong. The book explores the connections between reasons and intentions in practical agency, with a particular focus on legal reasoning. The volume as a whole seeks to present a picture of normativity that emphasises the relationship between agents and reasons for action. The editors argue in their introduction that prominent internalist accounts of practical reasons seek to explain normativity in terms of agent-independent facts about what ought to be done (3). The essays in this collection, by contrast, explore the idea that the normativity of moral and legal reasons is best understood by connecting them with the agent's intentions. This approach links 'knowledge of what the agent is doing with knowledge of what it is good to do' (6). The volume is divided into three parts. The first part, comprising four chapters, asks how intentional actions can give rise to normative reasons. It begins with two fairly technical essays on practical reasoning. Ulrike Heuer's chapter explores the connection between intentions and permissibility. She argues for the existence of what she calls 'reasons to act (or not to act) with a certain intention' (RAWCIs) (14). This offers a simpler and less contentious alternative to the doctrine of double effect in explaining certain kinds of cases where the permissibility of an action seems to turn on the agent's intention. The apparent existence of RAWCIs, Heuer argues, gives us reason to reject the view that intentions are irrelevant to permissibility. Sergio Tenenbaum's chapter looks at the role of satisficing in practical agency. He argues plausibly that a focus on practical rationality as a feature of actions (rather than decisions or preferences) gives satisficing an important role, particularly for actions with long-term indeterminate consequences. Actions, Tenenbaum points out, extend through time. Our goals are often vague or indeterminate in the sense that the precise sequence of acts used to pursue an end is rarely specified by the end itself. Baking a cake or running a marathon, for example, can be done in numerous different ways consistent with that goal (38-40). It is not plausible that successfully performing these actions requires us to maximise the utility of each part of the sequence. The next two chapters turn to legal reasoning. Heidi M. Hurd's clear and focused essay examines the plausibility of intentionalism as a theory of legal interpretation. She notes that defenders of originalism are often motivated by fidelity to intentions, so the plausibility of intentionalism is an indicator of the defensibility of originalism more generally (54). Intentionalism, however, struggles to deal with a fundamental question: what does it mean for a lawmaker to have an intention in relation to a dispute, such that the law should be interpreted in line with that intention (56)? If the content of the intention is merely a range of explicitly contemplated cases, then this will be insufficient to govern decisions the framers never thought about.

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence (section 1). I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law (section 2). I proceed to argue that legal decision-making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision-making thus conceived (section 3). Having done that, I discuss law's normativity (section 4), the normative force of legal justification (section 5), and the relation between the former and the latter (section 6). I conclude with a critical comment on Joseph Raz' understanding of the question of law's normativity (appendix).

This is an extended review (ca. 4,500 words) of Joseph Raz's "Between Authority and Interpretation." Joseph Raz’s new book, Between Authority and Interpretation, collects his most important papers in the philosophy of law and the theory of practical rationality from the mid-1990s to the mid-2000s. In these papers, Raz not only advances earlier theses but also breaks new ground in a number of areas. I focus on three of Raz’s topics here: theories of law, separability and necessity, and the normativity of law. While I am generally sympathetic to Raz’s thinking on these topics, I raise some room for doubt – especially with regard to his pessimism about fijinding a uniquely best theory of law and the relationship between law and morality.

2015

This essay is to be understood as primarily a discussion of one particular version of the conception of law as practical reason: Alexy's. But my ultimate concern here is with the foundation of a whole tradition of legal philosophy—the conception of law as practical reason, especially in its Kantian variant—and not just with one theory of law in that Alexy's account will be assessed by its ability to legitimise the appeal to practical reason to interpret, and make sense of, law as a system for guiding and justifying conduct. Thus, in the perspective endorsed in this study, the analysis and evaluation of Alexy's conception of law as practical reason are to be considered part and parcel of a broader attempt to subject the foundation of the conception of law as practical reason to critical scrutiny by so arriving at a critical assessment of that conception in general.