The Normative Fallacy Regarding Laws Authority

Arie Rosen

Abstract: The philosophical treatment of socio-political concepts is susceptible to a methodological fallacy, consisting of an illicit move from statements in moral theory to statements about social and political facts. This fallacythe normative fallacycan be found in legal philosophy as well. In this essay I discuss the normative fallacy regarding laws authority, criticize Razs theory of de facto authority as committing this fallacy, and consider the importance of laws de facto authority (which can be quite different from its moral, rightful authority) to legal philosophy.

1. INTRODUCTION This essay examines the question of laws authority and its significance to the philosophical investigation of the idea of law. The main argument offered here is that descriptive jurisprudence should concern itself with the socio-political question of laws de facto authority, rather than with the moral question of its rightful authority. This, I argue, has both conceptual and methodological implications for legal philosophy. The argument is divided into two parts. Section 2 is dedicated to the distinction between moral inquiries into laws rightful authority and inquiries into the socio-political phenomenon of its de facto authority. After discussing this fundamental methodological point, I move on to offer a critique of Razs theory of de facto authority, which is currently one of the most influential philosophical accounts of this phenomenon. My claim is that Razs account involves an implicit, mistaken predication of the concept of de facto authority on his particular theory of morally

Emile Nol Post-Doctoral Fellow, NYU School of Law. I am grateful to Jeremy Waldron, Liam Murphy, and David Dyzenhaus for their advice and comments on previous drafts of this essay, and also to Ken Eherneberg, John Ferejohn, Ruth Gavison, Noam Gur, Lisa Kerr, Roy Kreitner, Hillary Nye, Stefan Sciaraffa, Guy Sinclair, Kevin Toh, and Michel Troper for their comments and suggestions. I would also like to thank the editors of this volume and the participants of the 2011 conference on The Nature of Law Contemporary Perspectives, held at McMaster University.

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rightful authority. This predication is identified as an instance of the normative fallacythat is, an illicit move from statements in moral theory to statements about social and political facts. Section 3 builds on the conclusions drawn in Section 2 regarding the relations between rightful and de facto authority. It shows that our idea of law has been shaped and continues to function in circumstances in which law has de facto authority. I therefore argue that it is laws de facto authority (and not its rightful authority) that regulates our idea of law. Besides the importance of the analytical discussion of the concept of authority, and the new critique it offers of Razs theory of de facto authority, this chapter generally addresses the role of moral theory in descriptive legal philosophy. As we shall see, in order to avoid the normative fallacy in our legal philosophy, we must move away from an analysis of the idea of law that is based on the theorists own moral theory, to an exploration of laws de facto authority and the ideological and practical reality of which it is part. This means that we should take a step back from the moral theory of laws rightful authority, and focus our philosophical attention on the de facto authority of law, even if this de facto authority might be based on widespread erroneous and misguided moral convictions. 2. RIGHTFUL AUTHORITY AND DE FACTO AUTHORITY 2.1. A methodological fallacy I have already been using the terms de facto authority and rightful authority in the introduction, and before going any further I would like to make clear exactly what I mean by these terms. Rightful authority (also: legitimate authority)1 refers to a moral phenomenon. It describes a morally justified power to guide the behavior of another, a power which also commands morally justified obedience. De facto authority (also: effective authority) refers to

I prefer the term rightful authority to Razs legitimate authority, although the two describe the same moral phenomenon. The term legitimate authority suggests an immediate ambiguity, an ambiguity on the very point which I claim must be made clear. The term legitimacy itself has a sociological sense as well as a moral one, and for that reason the term legitimate authority ends up being less clear than it could be, and invites, I think, confusion and misunderstanding. Cf. Raz 1979: 3.

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a social relationship in which one party is in a position to guide the practical reasoning2 of another, based on the latters belief that obedience is legitimate. An important account of the social phenomenon of de facto authority can be found in the sociology of Max Weber. In his discussion of domination,3 Weber notes that the motivation for submitting to relations of domination can be diverse, and can range from uncritical habituation, to fear, to a belief in moral legitimacy. Legitimate domination (that is, domination believed to be morally legitimate) is distinguished from naked power and from domination secured by means of coercive violence. Authority for Weber is defined as this legitimate domination, i.e. as domination in which obedience is motivated by a sense of the moral appropriateness of obedience.4 I will use the term de facto authority in the same sense. The dependence of the social phenomenon of de facto authority on a moral belief is echoed in Razs account of the conceptual connection between de facto authority and rightful authority. Raz explains that5
(1) People with de facto authority are distinguished from people with naked power by virtue of their claim to rightful authority. (2) Consequently, any account of de facto authority presupposes an account of rightful authority. (3) Consequently, the concept of legitimate [i.e. rightful] authority has explanatory priority over that of a mere de facto authority. The latter presupposes the former but not the other way around.6

As long as we are concerned with social phenomena, it seems that we should prefer Webers emphasis on the belief in rightful authority as the basis for relations of de facto authority to Razs insistence on de facto authoritys claim to rightful authority.7 Still, the relativizing,
2

Since our ultimate interest here is in law, I will focus on the question of practical authority, and not on speculative authority regarding belief. 3 Domination (Herrschaft) is defined as a relationship in which there is sufficiently high probability of obedience by one party to an issued command of another (Weber 1967: 61-62). 4 See Weber 1967: 212, 299, 943; Giddens 1971: 154-156. Cf. Habermas 1998: 30. 5 Raz 1986: 25-26; Raz 2006: 1005-06. In summarizing Razs account, I do not follow his terminology of legitimate authority, and I substitute this term with rightful authority. See supra note 1. 6 Raz 2006: 1006. 7 An immediate question, that I would not like to discuss here, is how we should understand such claiming. This sounds like a metaphor, as authoritieseither abstract or concretedo not, literally, claim anything of the sort. One

naturalizing moves of both accounts are similar and appropriate. If we consider the phenomenon of de facto authority it is clear that it is connected to a moral belief (or, in Razs case, a claim to moral appropriateness), and not to morality proper. Despite the connection between them, the phenomena of de facto authority and rightful authority do not always overlap. The source of the potential disjunction is in the possibility of divergence in opinions regarding rightful authority. Although moral truth and moral beliefs can coincide, it is uncontroversial that they can come apart as well. Many of us think that there is an objective moral standard of rightful authority; but we equally acknowledge that people and even entire societies can sometimes be wrong in their identification of this standard. When they are, we have a social reality of de facto authority that exists despite the lack of rightful authority on the moral level. The potential disjunction between rightful and de facto authority explains the plurality of forms de facto authority can take. Rightful authority is often understood in unitary terms. Theories of rightful authority usually develop a particular account of justified authority and negate or reject rivaling moral theories. However, when it comes to de facto authority, it is quite possible for multiple moral convictions regarding authority to coexist simultaneously. Since de facto authority describes a social and cultural fact (rather than a moral reality), and since it is possible for different people to hold different views about rightful authority (since, at the very least, some people can be wrong), there can be multiple grounds for accepting de facto authority. The grounds on which de facto authority is justified can change the characteristics and form of the relationship itself. The way in which we justify de facto authorities will affect, for example, whether authoritative reasons will have an exclusionary effect vis--vis other reasons. I will say more about this in a short while. For now, however, I would just like to make clear the following uncontroversial claim: in our contemporary social circumstances there are, in fact, multiple grounds for the justification of de facto authority. Consider for example the question of the rightful authority of government and the many answers to this question that are available in our culture. According to one of the most prevalent
might say that such a claim is implicit, or is attributed to authorities by others, but it is very rare to find such a claim actually being made. It therefore seems unhelpful to have this claim at the center of our definition of de facto authority. This will become even more problematic when Raz argues that lawan inanimate objectclaims rightful authority, but we can leave this problem aside for now. Cf. Dworkin 2002: 1666-67; Himma 2007: 22.

theories of rightful authority, the core feature which makes for governmental authority is the ability to ensure order, security and cooperation.8 Some philosophers claim that the very presence of a single government which is commonly followed is essential for the security of individuals within society from internal and external violence, and that this gives us reasons to follow the instructions of effective governments.9 In a wider variation, the governments ability to solve coordination problems or to bring about economic and social development underlies its rightful authority.10 From yet another perspective, submission to government can be seen as justified when it leads to the protection of rights within society.11 These different views share a strategic move: they all identify the establishment of government as in itself a legitimizing good, at least as long as the person or institution in charge fulfills its main purpose (whatever that may be). As appealing as this strand of thought is, it is not the onlyand sometimes not even the mainground for submission to government. Other theories of political morality claim that only some special attribute of the particular judgment or will of the governing party can legitimize domination. In this way, some philosophers emphasize the formation of a particular will, either of the sovereign,12 the legislature13 or the public14 as the crucial factor in the moral legitimation of government. Submission to such wills can be justified on different grounds, most commonly related to consent,15 authorization16 or representation. 17 A third group of theories includes views in political morality, according to which rightful authority depends on the correctness (or probable correctness) of political decisions. According to these views, the judgment embodied in authoritative decisions is the source of the respect and obedience that we owe them. In this way, political decisions are sometimes said to embody or approximate a standard of reason achieved through public deliberation,18 or reflect the common
Finnis 1980: 246. E.g. Hobbes 1996; Schmitt 1996: 52. 10 Raz 2006; Finnis 1980: 244. 11 Kant 1983: 112; Finnis 1980: 246. See also Waldron 1996: 1562-1566. 12 E.g. Hobbes 1996: 183-188. 13 E.g. Hamilton et al. 1999 (nos. 78, 81). Cf. Waldron 1999. 14 E.g. Rousseau 1987: 139 (bk. 1 ch. 6). 15 E.g. Locke 2008 (ch. 8); Simmons 1999: 768-69. 16 E.g. Hobbes 1996 (ch. 16). 17 E.g. Rousseau 1987. Cf. Kant 1996: 91. 18 E.g. Cohen 1986; Estlund 1997: 173.
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good of the society,19 or the common mores and ethics of a particular political community.20 This (probable) correlation is said to be the source of their authority. As these examples show, de facto authority can be based on various conceptions of rightful authority. It might be true that no government can ever be rightfully (truly, morally) authoritative, or that only a government based on political participation can exercise rightful authority. These would be claims in moral theory, and they do not directly concern us here. There is no doubt, however, that insofar as de facto authority is concerned, multiple convictions exist. One does not have to be a relativist or a nihilist in order to acknowledge this social reality. Different people have, as a matter of social fact, different beliefs regarding the moral question of rightful authority of government. This is clearest when it comes to people and institutions in different times and places, but is also true within contemporary pluralist societies: right or wrong, there are different common understandings of what rightful authority is. This observation has important methodological implications. It should make us wary of a false move philosophers are prone to make, a move I call the normative fallacy.21 In order to understand the fallacy and its origin, let us consider the following two statements:
(a) The fact that this government enjoys de facto authority can be explained by the citizenrys convictions regarding its rightful authority. (b) By finding the right moral theory of rightful authority we can find the source of the de facto authority of governments.

While a sounds right and flows from our definition of de facto authority as predicated on a belief in rightful authority, b expresses a methodological fallacy. As we saw, forms of de facto authority can be radically different from each other, and also radically different from the right theory of political morality. An illicit strategy for theorists would be to engage in moral philosophy, come up with a theory of rightful authority, and uncritically continue to give an account of de facto authority that duplicates their moral theory into the factual realm. Strictly speaking, doing so would be a mistake: one cannot make factual statements about convictions
Bentham 1988: 116-22; Mill 1992: 26-35; Lieberman 2008: 614-617; Postema 1986: 268. E.g. Habermas 1998: 159. Cf. Dworkin 1986: 345-47. 21 I found that the term has been previously used in Campbell 1970, with a similar meaning (This fallacy consists of arguing from propositions which are themselves normative, or could count as evidence only for normative propositions, to conclusions which contain factual assertions.).
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and beliefs that uphold social structures based solely on ones moral theory. Rather, if we want to find out what forms of de facto authority are prevalent in a certain society we should look at the actual practices of governance and justification that people engage in. It might be argued that moral philosophy cannot help but be attentive to the actual understandings of concrete communities. This is probably true. However, it is one thing to claim that every moral conception is rooted in a certain culture and a certain tradition, and quite another to claim that any single moral theory reflects the entirety of intuitions and convictions prevalent in our culture. As we saw, in our culture there is a plurality of moral views and conceptions of rightful authority. No single moral theory can consistently incorporate all of these different views, nor should it be its goal to do so. Consider the following example. Let us imagine that Professor K, a gifted moral theorist, succeeded in finding the one true moral theory concerning the authority of political institutions. Unfortunately, this theory is inconsistent with the conceptions of institutional authority prevalent in Ks society. What we have here is a theory of rightful authority that does not tell us much about the de facto authority of institutions. If K equates his theory of moral justification with peoples beliefs regarding authority, he will end up claiming something false. He will be deducing something about the actual moral beliefs of a community from his moral theory. This would be an instance of the normative fallacy regarding authority. It might be that any theory is destined to deviate from reality. Even if K had been a brilliant sociologist rather than a moral theorist, he still would have been dealing in abstractions and generalizations, and his theory would not have been an accurate record of the many divergent and idiosyncratic convictions people in his society have. There might be an unbridgeable gap between theory and social reality in this regard; but this was not the problem in Ks case. As a piece of social theory Ks theory was not inaccurate or too general; it was simply a theory of the wrong thing: it was theorizing rightful authority when it should have been theorizing de facto authority. 2.2. Razs normative fallacy

The normative fallacy is a pitfall that constantly awaits theorists of social phenomena. Being legitimate, or justified or having a reason, can be understood either in a factual, sociological sense or in a moral, universal sense. It is always a mistake to predicate accounts of any of these social phenomena on the accounts of their moral counterparts. In the rest of this section, however, I would like to focus on the normative fallacy regarding authority, and in particular on the way it features in Razs important account of this concept. Now, Raz is not our hypothetical Professor K, and he does not think that everybody espouses his particular theory of rightful authority. Raz knows that people might disagree or be confused regarding what rightful authority is (that is, what morality actually tells us about the legitimacy of relations of domination). Clearly, people disagree about this moral question, and when they claim rightful authority they might have different ideas of what they are claiming. Think for example of the difference between the authority associated with the Pope, the authority associated with the British Parliament, and that associated with the Peoples Assembly in ancient Athens. The Pope, the Parliament and the Assembly may all claim to have rightful authority, but they would have very different ideas of what this means. Raz denies none of this. 22 In other places in his theory, however, Raz is less careful in attending to the implications of this factual plurality. At times, he lets his moral theory of rightful authority inform his social theory of de facto authority. This is the case in at least two important arguments Raz makes: one regarding the relations between laws de facto authority and its positivity, and the other regarding the exclusionary nature of factually authoritative reasons. Razs theory of rightful authority is, appropriately, a moral one. It is a moral theory since it is presented as answering a moral question, namely: how can relations of deference and obedience be morally justified?23 Razs claim in this regard is that [t]he basis of legitimacy is relative success in getting people to conform to right reason.24 He therefore finds that the only circumstances under which deference can be legitimate are those in which, by following the authoritative utterance, the person subject to authority improves her conformity with reasons that
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Raz 1986: 65-66. See also infra, text accompanying note 56. Raz 1986: 38. I use the term deference as the attitude correlating to domination. When someone (or in our case, an inanimate object such as law) is in a position to guide the behavior of another, the latter is deferring to the formers instructions. 24 Raz 1990: 13.

already apply to her.25 This is the basis for Razs famous three theses. He concludes that people with rightful authority base their directives on reasons that apply independently to the subjects of their authority (the Dependence Thesis);26 that the normal way to justify authority is to show that by following its directives people better conform to reason (the Normal Justification Thesis);27 and that all authoritative commands exclude the consideration of these prior reasons, on which it is claimed that they are based (the Pre-emption Thesis).28 Raz argues for all these theses on moral grounds.29 It is extremely important that we see that the three features of Razs account only make sense in cases in which domination is legitimized by reference to its ability to lead to better conformity to reason. Therefore, they do not transfer to the description of all cases of de facto authority. Some relations of de facto authority might indeed be based on the sort of convictions that Razs theory of rightful authority identifies. It might be, for example, a good account of the de facto authority of appointed experts.30 But Razs theory of rightful authority corresponds, as we saw, to only one of the many grounds which are available in our political tradition for the justification of domination.31

Raz 1979: 27. Raz thus believes that expertise and special capabilities of coordination can justify domination. See Raz 1999: 63; Shapiro 2002: 405-06; Marmor 2005: 134-35. 26 See Raz 1986: 47 (all authoritative directives should be based on reasons which already independently apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directives.). 27 See Raz 1986: 58 (... the normal way to establish that a person has authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) 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.). 28 See Raz 1986: 46 (the fact that an authority requires performance of an action is 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.). 29 Raz 1986: 38 (The explanation proceeds through normative theses of three kinds. One concerns the type of argument required to justify a claim that a certain authority is legitimate. The second states the general character of the considerations which should guide the actions of authorities. The last concerns the way the existence of a binding authoritative directive affects the reasoning of the subjects of the authority.) (emphasis added). 30 Lets say that I am contemplating whether or not to take a certain medicine. I try to consider all the various reasons for and against doing so. I go to an expert. She tells me that I must take the medicine. It is implied that her statement is based on reasons that independently apply to me. As my reason for going to the expert was for her to give me a reason to act which would replace all these underlying reasons I had, it also makes sense that her statement would be taken by me as a reason for action, and would exclude previous medical considerations I had regarding this practical question. Cf. Marmor 2005: 135. 31 Supra text accompanying notes 8-20. Moreover, some argue that Razs theory of rightful authority is marginal among conceptions of rightful political authority in this tradition. See e.g. Dworkin 2002: 1675; Shapiro 2002: 40102; Perry 2007.

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As far as Raz is concerned, this is not very interesting: people might simply be wrong, either in acknowledging others authority over them or in understanding the foundations of this authority. This, however, would make his conclusions regarding de facto authority extremely problematic. What can Razs theory of rightful authorityeven if correct in moral termstell us about the way people who deny it behave and reason? Naturally, it cannot tell us much about the de facto authority of law, if this authority is premised on a completely different understanding of what justifies domination and deference. Still, the three theseswhich were developed on normative groundsfeature in Razs descriptive account of de facto authority. We can see an example of this in Razs argument in favor of legal positivism. Raz suggests that there is something in the way law functions in our lives that makes it authoritative: it fits into our practical inferences in a certain (authoritative) way, as a special reason for action.32 His analysis brings him to the conclusion that all law must be positive law. His argument, as it appears in Authority, Law, and Morality,33 can be summarized in the following way:34
(P1) All law has de facto authority;35 (P2) All de facto authority claims rightful authority;36 (C1) Law claims rightful authority, and such a claim is a part of the nature of law;37 (P3) Since law claims rightful authority it has to be able to possess rightful authority;38 (P4) In order for something to be able to possess rightful authority it must be able to play a mediating role between people and reasons which apply to them;39 (P5) Only positive law can play such a mediating role40 (because only positive law can be presented as someones view and can be ascertained without reference to the considerations underlying its content);41

Raz 1979: 10. Raz 1994. 34 I am substituting, again, legitimate authority with rightful authority. See supra note 1. 35 Raz 1994: 199. 36 Raz 1994: 199. 37 Raz 1994: 199. 38 Raz 1994: 199, 203. 39 Raz 1994: 202-204. 40 Raz 1994: 205-209 41 Raz 1994: 202.
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(C2) Only positive law can claim rightful authority, 42 and therefore, it follows from C1 that (C3) Only positive law is law. 43

This argument came, of course, under criticism by non-positivists,44 and there is no need to rehash and assess these attacks here. To these critiques one should add the fact that Razs theory of de facto authority, as it is employed in this argument, involves a methodological fallacy. The first premise of his argument (P1) is about laws de facto authority. This is the only assumption Raz is willing to make regarding law in this argument. Still, this argument involves assertions taken from Razs own particular theory of rightful authority. In P3 and in P4, Raz makes an illicit move by assuming that since law has de facto authority the claim law makes (or the belief people hold about it) is that it is playing a mediating role between people and reasons that already apply to them. As we have seen, whatever it is that de facto authority claims need not necessarily correspond to Razs account of rightful authority. Even assuming that Razs moral theory is sound, laws de facto authority might be based on misguided convictions. The claimed rightful authority can be based, perhaps erroneously, on consent, sanction by popular will, or respect to institutions. However, it is clear that in the latter part of this argument (P3 to C2)an argument regarding the de facto authority of lawrightful authority is used in the universal-normative sense la Razs moral theory. When Raz says rightful authority he means morally justified judgment-based authority. We know this since other kinds of de facto authority are not committed to playing a mediating role between people and reasons. Unwittingly, Raz plugs his moral theory of rightful authority into his argument in social theory regarding the social phenomenon of laws de facto authority. Razs argument therefore fails to prove that there is something in the concept of de facto authority that necessitates a positivist concept of law. The fact that people tend to follow the law, or that people believe that they are right in ascribing rightful authority to law, does not win the day for legal positivism. In

42 43

Raz 1994: 213. Raz 1994: 213. 44 E.g. Dworkin 2002.

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circumstances in which the rightful authority claimed by law is not judgment-based, P4 is false and C2 and C3 are non-sequiturs. This is not only a refutation of Razs argument in favor of legal positivism, but also a proof against those who would like to interpret his general theory of authority in a manner that saves it from committing the normative fallacy. In fact, we can see in this later argument that the Razian inference 1 to 3 regarding the explanatory priority of rightful authority45 is not as innocuous as it might seem. This conclusion is supported by another instance of the normative fallacy, which occurs in Razs argument for the exclusionary nature of authoritative reasons. According to Raz, authoritative utterances serve as reasons for actions. They are special in that they also serve as reasons for the exclusion of other reasons.46 This exclusionary quality is explained in Razs later work in terms of his theory of rightful authority:
[Authoritative directives] exclude reliance on conflicting reasons, not all conflicting reasons, but those that the lawmaker was meant to consider before issuing the directive. Think about it: authority improves our conformity with reason by overriding what we would do without it, when doing so would not conform with reason. 47

It is now clear, however, that there can be no argument in favor of the exclusionary nature of de facto authority from Razs theory of rightful authority. Raz employs here, in his argument regarding de facto authority, two of the three theses developed in his moral theory of rightful authority: the Pre-emption Thesis and the Dependence Thesis. Here is Raz's Pre-emption Thesis:
the fact that an authority requires performance of an action is 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. 48

Supra text accompanying notes 5-6. See Raz 1999: 34-48, 183; Raz 1986: 46. 47 Raz 2006: 1022. 48 Raz 1986: 46.
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Raz explainsand this is importantthat the Pre-emption Thesis stems from the Dependence Thesis:
The argument for the pre-emption thesis proceeds from another, which I shall call the dependence thesis. It says: all authoritative directives should be based on reasons which already independently apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directives. 49

As we saw, the Pre-emption Thesis and the Dependence Thesis are not a necessary part of all forms of de facto authority (since not all forms of de facto authority are based on the conception of moral legitimacy that Raz espouses). It would therefore be wrong to establish a connection between de facto authority and exclusionary reasons based on the Pre-emption Thesis. In order to see this we can consider an instance of de facto authority that is not based on Raz's theory of rightful authority. Take Socrates for example. Socrates knew that he had no reason, apart from the law, for drinking hemlock. The law was not claiming to mediate between Socrates and reasons that independently apply to him, and Socrates practical reasoning was not premised on such claims. Socrates ended up drinking the hemlock and dying. He might have been wrong in acknowledging the authority of law in his case (Raz, you, and I might believe that he was wrong in this way), but he drank the hemlock nonetheless, and Plato reported his practical reasoning in Crito. His practical reasoning was working in a certain way, based on conceptions of political morality that are neither Raz's nor mine, but were definitely his. Based on this understanding of the authority of law, its authority is not based on a claim to play a mediating role between people and reasons, but on a belief in a quasi-contract between Socrates and the laws, a notion that was related in Socrates mind to consent, gratitude and social need.50 This insight should lead us to reject Razs exclusionary account of de facto authority. It must make us wonder what reasons were supposed to be excluded from Socrates reasoning. Raz does not argue that authoritative statements exclude all reason, but only the dependent reasons that the person in authority should have considered. It makes absolutely no sense to exclude considerations of a kind that the person with authority could not consider, and Raz does not

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Raz 1986: 47. Plato 1892: 151-55 (paras. 50-53).

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claim that we exclude all reasons contrary to authoritative directives. So, then, what reasons were supposed to be excluded by Socrates? All reasons against drinking hemlock? That would be going further than Raz. Only some reasons? But then, which? The problem is that if de facto authority does not claim to play a mediating role between people and dependent reasons (no Normal Justification Thesis and no Dependence Thesis) then there is no reason to exclude reasons (no Pre-emption Thesis); and this is exactly what happened in Socrates case. Since in this case laws authority was not based on its claim to play a mediating role between people and reasons there was simply no group of dependent reasons that he should have excluded. Of course, some reasons can triumph over other reasons in other ways besides exclusion, that is, by outweighing them. Wouldn't it do more justice to Socrates process of practical reasoning to say that laws authority gave Socrates (what he took to be) very weighty moral reasons for drinking hemlock, reasons that outweighed the other reasons he had against doing so? Isn't that what was actually going on? This was, after all, Socrates own understanding of things.51 My point, of course, is general, and goes beyond Socrates example. Raz is completely right in suggesting that the consequences and function of de facto authority depend on the grounds people believe they have to follow the authoritys directive. If one espouses Razs theory of rightful authority, her practical reasoning will follow Razs exclusionary logic. However, the de facto authority of institutions can be effectively justified in different ways as well, based on ideas of representation and consent, will-formation, legality, et cetera. When this is the case, it makes no sense for people to treat authoritative reasons as exclusionary. Raz might contest the claim that these other types of de facto authority are based on valid moral theories, but his contestation would be at the moral-normative level. Raz cannot contest the availability of radically different convictions in political morality and their influence on our culture and tradition of thinking about political institutions. He cannot deny the fact of the existence of these forms of de facto authority. 52 Nor can he deny that different models of de facto authorityinformed by different

51

Plato 1892: 156 (para. 54) (Listen, then, Socrates, to us who have brought you up. Think not of life and children first, and of justice afterwards, but of justice first, that you may be justified before the prince of the world below.). 52 This point is different from the point recently made by Marmor regarding rightful authority (Marmor 2011). Marmor argues that the moral legitimacy of domination can vary depending on the details of its institutional exercise, so that different institutional practices of domination should be legitimized in different ways. This strikes me as a cogent claim in moral theory, which shows that rightful authority can come in different shapes and sizes. To this multiplicity of ways in which domination can be morally legitimate, de facto authority adds another level of

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convictions about rightful authoritylead to different modes of practical reasoning and distinct social relationships. Different understandings of the grounds of rightful authority lead to different models of de facto authority. This makes Razs theory inadequate for explaining many if not most instances of de facto political authority.53 In his earlier work, Raz puts forward a descriptive argument in favor of the exclusionary nature of authority.54 Although I am not discussing here this alternative line of argument, I think that my inquiry reveals how much Razs descriptive-social theory is enmeshed with his normative-moral work. If de facto authority is not premised on its ability to play a mediating role between people and reasons, what reasons is it supposed to exclude? Since the rulers do not claim to be basing their decisions on reasons that already apply to people, and since no one is treating the rulers as playing this mediating role between people and reasons, there is no limited set of reasons that people should exclude. It seems that Razs description of the exclusionary nature of de facto authority makes perfect sense given his model of rightful authority, but cannot apply to cases in which other conceptions of rightful authority are espoused. 2.3. A note on semantic externalism Before I move on, I should respond to an important objection.55 This objection sees something dangerous in the move I make from the plurality of conceptions that people have regarding rightful authority to a certain plurality of models of de facto authority. The objection might go something like this:
Although people clearly have different personal understandings of a certain concept (particular conceptions), they do nonetheless share a single concept in our case, a concept of de facto authority. Since my account insists on a plurality of models of de facto authority which is the result of different beliefs
variance. This level of multiplicity is due to the fact that there is no necessary connection between the de facto authority of an institution and its rightful authority. 53 It is important to note that Raz is by no means alone here. Many thinkers develop a unitary conception of legitimacy and build a political theory around it. It is in this way that Hobbes equates authority with domination based on authorization of an agent by a principal; that legal positivists sometimes equate authority with legitimate domination based on legality; and that Arendt equates authority with domination rooted in something transcendent, in the legitimacy of tradition or the idea of foundation. Cf. Hobbes 1996 (ch. 16); Kelsen 1967: 56, 194; Arendt 2006: 177, 186-206; Arendt 1968. 54 E.g. Raz 1999: 38-44, 74-75. 55 I am grateful to Joseph Raz for suggesting this point to me.

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people have regarding rightful authority, it might seem that Raz and I are simply engaged in different projects. While Raz is interested in a concept we all share (that is, in the meaning we as a socio-linguistic community attribute to de facto authority), I am concerned with the variety of individual understandings (or misunderstandings) of this shared concept.

The objection builds on a distinction between individual understandings and concepts present in a certain culture. Indeed, when Raz considers the possibility that his argument presupposes that people know and accept his specific theory of rightful authority he writes:
To be sure such an assumption would not be justified. Nor is it made. All I am assuming is that the service conception of authority is sound, i.e. that it correctly represents our concept of [rightful] authority. It is not assumed that people believe that it does.56

For Raz, conceptual analysis is not the same as tracing the beliefs of people. He believes that there is a deep structure of concepts that we share, even if we dont know it. In fancier philosophical terms, the objection can be described as an accusation that my critique of Raz (and my theory of de facto authority) is incompatible with semantic externalism. Semantic externalism insists that the meaning of a concept is not exhausted by the mental understandings of the people who commonly use it; rather, meaning develops in a linguistic community in its interaction with a certain reality, and is best seen as the product of sociolinguistic relations.57 This might seem to conflict with my emphasis on a plurality of models of de facto authority. My semantic externalist critic might claim that in our socio-linguistic community there is only one concept of rightful authority, and, since all de facto authority claims rightful authority, there is only one model of de facto authority as well. Consequently, if Raz got the concept of rightful authority right (and let us assume, arguendo, that he did), then he also got the concept of de facto authority right, without any regard to what people actually believe.

56 57

Raz 1994: 194, 204. See Putnam 1975.

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The objection, however, is misconceived. Recognizing the fact of a plurality of models of de facto authority does not entail granting any preference to individual understandings over the existence of social and linguistic concepts. The point I wish to make is thus completely consistent with semantic externalism. The important thing to note is that we have two concepts here: the moral concept of rightful authority and the factual concept of de facto authority. Nothing in what I say is meant to challenge the singularity of either of these concepts, or to argue that their investigation should be sensitive to the plurality of conceptions individuals have of them. If semantic externalists are right (and I think they are), then the fact of disagreement between individuals in a certain community as to the content of the moral concept of rightful authority cannot serve as the basis for arguing that there are different concepts of rightful authority in our community. We may have one concept, and some people are just wrong in their understanding of this concept. Something similar can be said about the concept of de facto authority. People might disagree about what de facto authority is, as, for example, Raz and I disagree. But this does not mean that there are two different concepts of de facto authority, one for Raz and one for me. Ratherand this is the claim of my critiqueone of us is wrong and the other is right about a concept that we share as members of a socio-linguistic community, responding to a similar factual reality. To say that our one concept of de facto authority must account for the factual multiplicity of models of de facto authority actually present in our community is not to argue for conceptual pluralism. If, for example, we were to debate the concept of a chair, we would have been right in demanding that our single concept should be able to accommodate all the different models of chairs that are in our world. Had a chairs-philosopher come to us and claimed that the concept of a chair is that of a blue metallic seat, we would have told him hes wrong: the concept of a chair must be wide enough to include brown and green models of chairs, as well as plastic and wooden models. The same is true of de facto authority. As a concept that describes a social phenomenon, the concept of de facto authority must be wide enough to account for the multiplicity of models of de facto authority that we can actually observe in our social circumstances. It must accommodate, for example, models that are based on consent and participatory democratic procedures, just to name two major models of de facto authority prevalent in our culture. Neither 17

of these models necessarily involves a claim that authoritative utterances play a mediating role between people and reasons. There is an undeniable fact of disagreement regarding what rightful authority is; the question is what we should make of it. Semantic externalism tells us that one wrong answer would be to say that this proves that there are many concepts of rightful authority. However, granting that there is a single concept of rightful authority, I still insist that the concept of de facto authority must accommodate a multiplicity of relations that is factually prevalent in our social circumstances. If we have a concept that purports to describe a social realityas the concept of de facto authority doesthen this concept cannot exclude the multiplicity of forms that relations of de facto authority actually take in reality; just like a concept of a chair cannot disregard the multiplicity of forms that chairs take in our world. This is, however, exactly what Raz is doing. Here is another way to make the same point. I suggested earlier that the phenomenon of de facto authority consists of a belief (in the legitimacy of the directive) that gives a reason to engage in a certain behavior (deference). Crucial to my point is that the belief here is part of the social reality. It is a fact that we must describe, not a conception that we should evaluate. The plurality of beliefs matters, not because they show us that there are multiple concepts of rightful authority, but because this plurality is part of the social reality that our factual concept of de facto authority purports to describe. We should not care, in terms of our descriptive social theory, if people are wrong about what morality demands, as long as their beliefs inform their practical reasoning and their behavior. So, models of de facto authority, which can be based on different conceptions (even wrong conceptions) of rightful authority, can be of different sorts. Some of these models can entail exclusion of reasons while others do not, and some of them (arguably) entail a certain understanding of law, while others do not. Razs explication of the concept of de facto authority should account for this multiplicity of moral conceptions as part of the social reality that it purports to describe. Since it does not, I believe that this account is inferior to other possible elucidations of the concept of de facto authoritynamely, those that render the concept wide enough to accommodate at least the primary forms that de facto authority takes in our world.

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The semantic externalist wants to say that the members of our socio-linguistic community, who respond to the same social and moral reality as we do, have shared concepts of de facto authority and rightful authority. I do not dispute this. My claim is that our shared concept of de facto authority purports to describe the multiplicity of forms that relationships of de facto authority actually take. Our explication of the concept of de facto authority cannot hope to achieve this aim if it is tied down to a single account of the moral concept of rightful authority even if it is the right one. Moral concepts do not determine factual concepts that purport to describe social realities (at least not a priori). More generally we can say that moral theory does not determine descriptive social theory; not if the latter wants to avoid the normative fallacy. I do not believe that anyone should want to deny this, especially a legal positivist like Raz. 3. DE FACTO AUTHORITY AND THE IDEA OF LAW 3.1. The practical matrix of our idea of law Laws de facto authority is important for contemporary debates in legal philosophy regarding the idea of law and the relations between law and morality. The authoritative nature of lawas well as the contingent structures of institutional authority that can be found in particular legal systemsseems to depend on moral convictions we share, and which undoubtedly shape our legal practices and their conceptualization. Now, I am not sure if it is appropriate to say that people are dominated by law, or that law has authority over people. It might be argued that this terminology is more suitable to relationships between people, rather than to relationships between people and inanimate things such as law. 58 But as a manner of speaking, theorists often talk about laws authority, and when they do they mean by this something like the following: People defer to the content of law in a similar way to the manner in which they sometimes defer to the commands of a person, and this deference is held by them to be justified in an analogous way to the way obeying others can be justified. To say that law has de facto authority can thus be broken into the following two assertions: (1) people defer to law; and (2) they believe this deference to be morally legitimate.

58

Cf. Weber 1967: 14; Foucault 2000: 337.

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Raz suggests, as we have seen, that law necessarily has de facto authority, and therefore has to be capable of having rightful authority.59 Razs argument, we now know, involves a normative fallacy; but other than that it calls our attention to something which strikes me as by and large right and important. Law normally has de facto authority, and this is significant to the philosophical investigation of it. This section discusses this significance. Now, it is one thing to say that law normally has de facto authority, and quite another to say (like Raz) that law necessarily has de facto authority. The first assertion is factual, and the other is conceptual. I wish to make only the factual claim, and then argue for its significance in our investigation of the idea we have of law. While to say that law necessarily has de facto authority raises a host of difficult semantic and metaphysical questions, to say that, in the normal case, law has de facto authority and that this is related to the way in which law is conceptualized in our culture seems much less controversial. Although this might not reveal the necessary and sufficient conditions for something to be called law, it can still show us the way to answer some of the questions that plague our legal philosophy. The actual de facto authority of law is important to legal philosophy because it serves as the immediate context for the conceptualization of law. Ideasall ideasdo not subsist in isolation from material reality (and from other ideas). Ideas themselves are the product of human activity, and they are shaped and maintained in a social, ideological, and material context, which serves as their practical matrix. 60 The idea of law is no different. No matter what our idea of law happens to be, it is set in a practical matrix that necessarily constrains and influences the idea we have. It is therefore significant that in the practical matrix in which the idea of law is setin which it emerged and in which it still subsistslaw normally has de facto authority. 61

Raz 1994: 199. I borrow here from the useful terminology of Ian Hacking. See Hacking 1999: 10 (Matrix ... derives from the word for womb, but it has acquired a lot of other senses... The matrix in which the idea of the woman refugee is formed is a complex of institutions, advocates, newspaper articles, lawyers, court decisions, immigration proceedings. Not to mention the material infrastructure, barriers, passports, uniforms, counters at airports, detention centers, courthouses, holiday camps for refugee children.). Cf. Berger and Luckmann 1967. 61 Reference to the normal case is not meant to smuggle in conceptual assertions through the back door. By the normal case I mean just that, the normal way in which law is treated by actual people in actual historical and social settings. The normal case is always an empirical reality, and is always important for understanding our concepts and ideas. See generally Wittgenstein 1958 (142) ( if rule became exception and exception rule or if both became phenomena of roughly equal frequencythis would make the normal language-games lose their point.). Cf. Leiter 2007: 168-69.
60

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The claim that, in the practical matrix of our idea of law, law enjoys de facto authority does not strike me as controversial. Let us examine both parts of this double claim (regarding deference to law and its perceived legitimacy). The first partthat people normally defer to lawis hardly controversial when it comes to our social reality, and I would not like to spend too much time discussing it. If law is anything it is something that guides our behavior, and especially our social and economic interactions. Now, I would not like to claim that it is part of the nature of law that it is deferred to. I would not even like to raise the more tenable claim that law is always promulgated with the intention that it be obeyed. My only claim is that in the normal case law is indeed deferred to. Sometimes, some may say, law is not worthy of deference. Sometimes, others may say, law does not enjoy deference in practice. Both of these cases might be grey areas in which people may debate whether the phenomenon referred to is law or not. I am not getting into that. It should be clear, however, that in the normal case, in the case that shapes and constrains our common understanding of what law is, law is deferred to by a certain group of people. The same is true of the second claim about laws authority, regarding laws perceived relation to rightful authority. It is perhaps possible to imagine a law that is deferred to on grounds other than belief in the moral legitimacy of such deference (say, out of fear of sanction alone). If we do not like imagining, we can look at our history or at the political realities of other cultures, and try to find instances in which law was deferred to solely on grounds of fear from punishment. I am not sure whether we would find any such examplesit might be that many people would prefer to legitimize even the darkest regimes in order to avoid understanding themselves as being motivated solely by fearbut for the sake of the argument here I am willing to assume that we will find some such examples. It is in this sense that de facto authority is not a necessary condition for something being called law. Even if we were to find such examples, they do not constitute the matrix in which our ideas of law emerged. In the historical context of the development of our common understanding of law, as well as our philosophy of law and legal theory, law has constantly been something that people deferred to, and their deference to law has been widely believed to be morally legitimate. The reason for this is not metaphysical or conceptual, but practical and evolutionary. Modes of 21

government that are perceived as illegitimate tend to be factually weaker and more susceptible to rebellion, disobedience, revolution, and, ultimately, extinction. As Spinoza observed:
For as long as men act only from fear, they are doing what they are most opposed to doing, taking no account of the usefulness and the necessity of the action to be done, concerned only not to incur capital or other punishment. Indeed, they inevitably rejoice at misfortune or injury to their ruler even when this involves their own considerable misfortune, and they wish ever ill on him, and bring this about when they can. 62

As history shows us, the de facto authority of law has been, and still is, an important part of the practical matrix in which our idea of law exists. This is evident in the many justificatory stories we know to tell about the lawstories that were formed in the course of millennia. Particular episodes of criticism, dissatisfaction, and disillusion notwithstanding, the idea of law emerged as something that seems to deserve our obedience and respect. 3.2. The idea of law and our moral convictions The idea of law is not indifferent to the practical matrix in which it is set. There is much to be said about this matrix and the way it influences our conceptualization of law, but here I would like to point only to one such influence, namely, the establishment of a connection between the ideas people have of law and ideas they have about political morality. If the practical matrix of the idea of law is one in which deference to law is perceived to be legitimate, then the conceptualization of law in this context must show it as an object deserving of deference. Clearly, our practices of governing through law are the product of history, and they were shaped in a manner that will make them acceptable to us.63 People are usually willing to be governed

Spinoza 2001: 63. Spinoza also explains that an individual can be bound by fear, but can also be bound by love (ex amore obligatus), the latter being a sounder basis for political stability (Spinoza 2001: 185-86). Cf. Hart 1994: 202; Weber 1967: 213. 63 Cf. Fuller 1965: 1036-37 ( in judging what constitutes acceptable "manageability" in a social task we must take into account not only the degree of control that may be exercised, but the public expectations that accompany that control. Furthermore, the question is not one of the brute quantum of control that is possible, but of its mode and manner, or the point in the total situation at which intentional direction makes itself felt.).

62

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only by a law that they can accept as legitimate. This, in turn, shapes and regulates what law in a certain culture is understood to be.64 Consider the many ready-made stories we have for justifying deference to law. In our contemporary culture alone, law is believed to be worthy of obedience because it is just, or because it is needed for cooperation, or because it is an act of political self-government, or because it is related to morality, or because we implicitly consent to it, or because obedience to it is entailed by what we owe to our fellow citizens, et cetera. There are even more stories ready to be told about the reasons we have to submit to laws demands if we look into the history of our political thought. These stories, these schemes of legitimation, constrain and shape what we understand law to be. An idea of law that cannot be justified in our culture will, most likely, be unsuitable for government and, therefore, not part of our world at all. It is important to remember that the argument that I am suggesting is not logical or metaphysical, but contingent and contextual. The only claim I would like to defend here is that in the actual practical matrix that regulates our conceptualization of law, deference to law was normally related to some sort of justification that made it worthy of obedience. In the reality in which our idea of law still functions, law is related to moral ideas and to specific understandings of political morality. Some legal positivists would contest this. They think that keeping law distinct from the question of legitimate deference to law is crucial. 65 In an important way, I do not disagree, as I say nothing here about moral legitimacy. My claim is that the idea of law is set in the ideological context of the perceived moral grounds for deferring to law. Take, for example, natural law theories and the idea of law that they advocate. According to the model of these theories, law makes sense not only as a concept of law in an abstract, context-free theory. It makes sense because it fits with certain political ideas and certain ideas about morality, which would make

64

Berger and Luckmann elegantly explain the connection between perceived legitimacy and the construction of meaning in a more general context, not related to law alone: Legitimation not only tells the individual why he should perform one action and not another; it also tells him why things are what they are. (Berger and Luckmann 1967: 93). For a law-related example see Burgess 1992: 194-95 (describing the English Revolution of 1640 as centered on the question of what the law is, the common law or the civil law that was used to make sense of the kings authority). 65 See infra Section 3.3.

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law a viable part of social life as something that is believed to possess rightful authority.66 The same is true of the legal positivist understanding of law. Legal positivists can think that they are talking about law in the abstract, with no relation to political or moral theory, but they would be wrong in thinking so. Their concept of law is a perfect fit to certain political understandings, to certain moral theories, to certain social realities. It is not a coincidence that positivist theories of law emerged at an age of increasing legislative activity, as ideas of legal stability, predictability, and self-government were gaining prominence. If it was not for this context, the idea of law articulated by positivists would not have come into being at all.67 So what should we make of the claims of legal positivists that the concept or the nature of law is unrelated to conceptions of legitimate deference to it? The best way to understand such claims, I think, is to see them as trying to articulate ideas we have of law outside their practical and justificatory context. De-contextualized ideas about law are not wrong-as-such. They can reflect the phenomenology of law and try to refine our intuitions about it. However, theories that are adamant in their rejection of any connection between law and ideas in political morality have two connected disadvantages. First, they do not take into account the existence of something that is actually there (i.e. the connection between law and deference which is perceived as legitimate). In this sense their articulation of ideas about law is inferior to an articulation that would take this connection into consideration. Second, some of these theories do not only disregard the context of the ideas they articulate, but they deny the relevance of this context altogether. They are therefore saying something that is wrong. Again, all of this should be understood as a claim about the circumstances of the conceptualization of law, and not about the necessary and sufficient conditions for the use of the word law. We can take the concept of law out of this practical matrix, disregard its perceived justification and say: look at these bees: their nature makes them participate in Gods eternal law, and our law lets us do the same; or: consider this man: he makes law as if he is king but nobody recognizes him as ruler or defers to his law; or: see these captive people in the camps, governed by their oppressors: the commands of their tormentors are their law, in the same way

66

E.g. Finnis 1980: 260-291. Outside the narrowly defined camp of natural law, compare Fuller 1965; Dworkin 1986 (ch. 3); Waldron 2008: 19-36. 67 Cf. Dyzenhaus and Taggart 2007: 162-63.

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that the enactments of our parliament are our law. These would be perfectly sensible uses of the word law. They perhaps tell us something about the similarity between certain situations and the circumstances of politics as we understand them, accentuating certain features of human governance while disregarding others. However, they might lead us away from appreciating what we understand as the idea of law, that is, from the fullness of our common understanding of what law is. This is so because they take some ideas we have about law and separate them from the context that constrains them and in which they normally function. To conclude this point we can say that by arguing that law necessarily has de facto authority, or that law necessarily claims rightful authority, Raz and others are pointing to something right and important, although in a vague way. I think that the same intuition can be articulated more clearly by saying that the ideas we have about law were shaped in a practical matrix in which law enjoyed de facto authority (that is, in which people deferred to law because they believed that such deference is legitimate) and this is still the matrix in which these ideas about law function. This matrix regulates the ideas we have of law and, among other things, constitutes a connection between the ideas we have of law and ideas we have in political morality. 3.3. Laws authority between positivism and non-positivism It is easy to see why tying legal philosophy to the theory of authority would be attractive to a legal positivist like Raz. If we emphasize deference to law it seems to make sense that law can only be positive law. If we go beyond positive law, what is there to defer to at all? I think that this is the basic intuition expressed in Razs argument in favor of legal positivism. However, as compelling as the argument might seem, I think that it is wrong. Non-positivist conceptions of law are compatible with deference to law just as much as positivist conceptions are. They demand, however, that we defer not only to what people say but also to reason, or to Gods law, or to morality, or to the values underlying the system. A non-positivist law can have de facto authority. It is only that the object to which de facto authority is attributed would be circumscribed in a different manner from the way legal positivists would define law. In short: acknowledging deference to law does not entail legal positivism. Legal philosophers thinking through the relationship between law and morality tend to follow one of two paths. Some philosophers, like Hans Kelsen and H. L. A. Hart, maintain that 25

the idea of law can be explored and explained without addressing the morality or the justification of deference to law. Other philosophers, like Lon Fuller, John Finnis, and Ronald Dworkin, think that the ideas we have of law are very much related to moral phenomena. Let us consider the two positions, now that we have established the significance of laws de facto authority to legal philosophy. According to the positivist line Kelsen and Hart share, one should not confuse the question of the evaluation of legal practices with the question of their nature.68 Using a terminology he might have avoided today, Kelsen famously distinguished between evaluation and description of law:
[F]rom the standpoint of scientific cognition of positive law, its justification by a moral order different from the legal order, is irrelevant, because the task of the science of law is not to approve or disapprove its subject, but to know and describe it.69

Although one might argue that any description necessarily involves a dimension of evaluation, still it seems that this position can be intelligible. Kelsen argued for a division of labor between legal philosophy and moral philosophy: while legal philosophy should provide a theory of the legal practices and the nature of law, moral philosophy should deal with questions of political morality. Kelsens claim, which for many years was considered a major tenet of legal positivism, was that the nature of law can be ascertained without considering laws rightful authority. This theory is not wholly wrong, but it is not right either. No matter what your philosophy of law is, whether you are a legal positivist or natural law advocate, a non-positivist, a softpositivist or whatever, your articulation of the idea of law functions in a certain setting of practices and perceived political morality in which deference to law can make sense. Between the different articulations of the concept of law put forward by any of the major theories of legal philosophy, there is not a single one that does not correlate to certain intuitions we have about political morality. This includes, of course, legal positivism, whose conception of law relates

Hart 1994: 240. At an earlier stage, before the publication of The Concept of Law, it seemed that Hart had a more moderate view on the matter. E.g. Hart 1958: 622. On this see Dyzenhaus and Taggart 2007: 161. 69 Kelsen 1967: 68.

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however unwittinglyto political ideas we hold dear, such as self-government, democracy, and liberty. Distinguishing themselves from other strands of legal positivism, some later positivists have come to criticize the de-contextualized theory of law of Kelsen and Hart.70 Arguing for what law should be, rather than what law already is, normative positivists stress the moral and political context in which the core ideas of positive law were first articulated, and insist that these ideas regarding law cannot be understood without the theories that render this law legitimate and desirable.71 These positivist theorists have revived an earlier strand of legal positivism, which saw law as an element embedded in the context of political reality, and not as an autonomous phenomenon to be separately examined and investigated.72 Focusing on prescription rather than description, most normative positivists say little of what law is in our world. But if they were to claim something about our idea of law, they would have been going about it the wrong way. One cannot base a descriptive social theory on a prescriptive normative one. Natural law theories suggest that law must have rightful authority that would make deference to it obligatory on moral grounds. Outside the more narrowly defined natural law tradition, this relation between rightful authority and law persisted in non-positivism. Dworkin suggests that theories of law should be understood as interpretive theories of our legal practices. For him this means that a theory of law should both fit our legal practices and offer the best possible justification for them.73 His methodology led him to the conclusion that [a] conception of law must explain how what it takes to be law provides a general justification for the exercise of coercive power by the state, a justification that holds except in special cases when some competing argument is specially powerful.74 Dworkin believes that the non-positivist idea of law as integrity provides the best interpretation of our legal practices, according to these criteria.

70 71

E.g. Waldron 2002: 369-74; Postema 1986: 303-335; Campbell 2011. Waldron 2002: 368-69. Waldron 2001. Cf. Hart and Sacks 1994: 109 (... the proposition that settled law should be respected, until it is duly changed ... is itself an ethical concept, resting on the recognition that defiance of institutional settlements touches or may touch the very foundations of civil order, and that without civil order, morality and justice in anybodys view of them are impossible.). 72 See Waldron 2002: 369; Dyzenhaus 2004; Dyzenhaus and Taggart 2007. 73 Dworkin 1986: 66-67. 74 Dworkin 1986: 190.

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Dworkin is not completely clear in explaining why theories of law must put legal practices in the best possible moral light.75 The analogy he offers from art76 seems to constitute a doubtful argument, and is open to easy attacks. One might rightfully question a theory that claims that we should always do our best to justify our legal practices.77 Indeed, Dworkin does not require only that our theory of law will be able to make the multiplicity of our legal practices intelligible, but also that it will be able to justify it. In his leap from understanding to justification Dworkin seems to be moving away from the foundation his conceptual methodology has in philosophies of language,78 science,79 and hermeneutics.80 For us, however, it is clear that the intuition Dworkin expresses is pointing in an understandable direction: he is right to acknowledge that the idea we have of law is related to our legal reality and to the moral convictions underpinning this reality. What he fails to see is that this relation is to perceived moral justification rather than to a universal, objective one. Law should be seen as justified not because this is the a priori point of legal practices or because law is inherently related to (the one true) morality, but because our common understanding of law was shaped in reference to something that normally enjoyed de facto authority in our culture. Non-positivism and the normative strand of legal positivism both offer theories of law that include morally acceptable reasons for deferring to law. They are both, however, insensitive to the possibility that our ideas of law are not regulated by the context of their particular theories of political morality. Evaluating the conclusions of these philosophers would fall outside the scope of this chapter. But we can see that their methodology is flawed. Non-positivists argue that the ideas we have of law are very much related to morality, legitimacy, and authority. But when they speak of morality, legitimacy, and authority they speak of universal morality, moral legitimacy, and rightful authority. This leads them to a dangerous move, analogous to the one I have argued against in Section 2. Making their way to ideas about law through the exploration of moral theory, they presumeeither implicitly or explicitlythat our ideas of law have to be related to

Cf. Schauer 1994: 504; Murphy 2005: 8; Marmor 2005: 39-43. Dworkin 1986: 59-62. 77 E.g. Unger 1996: 46-50; Leiter 2007: 158-59, 165-66. 78 See Dworkin 1986: 53, 421 n. 3. 79 Dworkin 1986: 53, 421 n. 4. 80 Dworkin 1986: 55, 62, 419-20 n. 2.
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the specific theory of political morality they have come up with. This presumption is unwarranted. Looking into the de facto authority of law is different from inquiring into laws rightful authority. It produces a theory which aims at reporting the discourse of morality rather than at engaging in the moral discussion itself. This must be the right way for descriptive social theory, understood as a theory of social phenomena that cannot be investigated and determined by moral philosophy. Investigating laws de facto authority means suspending our moral judgment and accepting conceptions of political morality that are different from our own as relevant to our philosophical inquiry, as long as they are influential in the culture we wish to investigate. 3.4. What laws authority can and cannot do for legal philosophy Here are some questions that I think that we should keep apart, along with the answers I suggest to them:
Is our idea of law shaped and formed in the context of our moral convictions? Yes, of course.

Is our idea of law related to morality proper? Maybe, but this would only be the case if our contingent moral convictions happen to correspond to the true precepts of morality. Does answering the first question in the affirmative mean that there is a necessary connection between the content of law and the content of our moral convictions? No. Normative legal positivists have shown us that it does not.

Does answering the first question in the affirmative mean that there is a necessary connection between the content of law and the content of (true, objective, universal) morality? No, definitely not.

Talking about the authority of law does not yield a neat philosophical argument for any one conception of law. I have tried to show that there can be no direct argument from the very idea of de facto authority of law in favor of a legal positivist concept of law. This is so because the idea of legitimate deference can imply deference to natural law, positive law, non-positivist law, et 29

cetera. I have also tried to show that there is no clear argument in favor of non-positivism based on laws de facto authority. First, there is the counterexample of normative legal positivism, which puts forward a plausible theory of the rightful authority of a purely positive law. Second, we are yet to see a non-positivist account of law that is methodologically committed to accounting for the multiplicity of conceptions of political morality prevalent in our culture. In other words, the fact that the idea of law is related to our moral convictions does not, by itself, determine the relations between the content of law and morality or, more generally, the question of what law is in our world. Still, our ideas of law should be investigated with laws de facto authority in mind. Insisting on this, while making sure that we are not held captive by any single conception of laws rightful authority, would help us map and theorize the complex and sometimes contradictory ideas we have about law. To be true to the project of ascertaining these ideas means suspending our personal moral theory and accepting the multiplicity of legitimizing schemes available in our culture for the justification of deference. A methodology committed to tracing these different schemes and relating them to ideas we have about law seems to be much sounder than those currently employed in legal philosophy.

Bibliography
Arendt, H. (1968) What Is Authority? in Between Past and Future: Eight Exercises in Political Thought. New York: Penguin Books, 91-141. Arendt, H. (2006). On Revolution. Revised edition with and Introduction by Jonathan Schell. London: Penguin Books. Bentham, J. (1988). A Fragment on Government. New Authoritative Edition by J. H Burns and H. L. A. Hart. Cambridge: Cambridge University Press. Berger, P. L., and Luckmann T. (1967) The Social Construction of Reality: A Treatise in the Sociology of Knowledge. New York: Anchor Books. Burgess, G. (1992). The Politics of the Ancient Constitutions: An Introduction to English Political Thought, 1603-1642. Pennsylvania: The Pennsylvania State University Press. Campbell, T. D. (1996). The Legal Theory of Ethical Positivism. Aldershot: Ashgate Dartmouth. 30

Campbell, T. D. (1970). The Normative Fallacy, The Philosophical Quarterly, 20: 368-377. Cohen, J. (1986). An Epistemic Conception of Democracy, Ethics, 97:26-38 Coleman, J. (2011). The Architecture of Jurisprudence, Yale Law Journal 121:2-80. Dworkin, R. (1986) Laws Empire. Cambridge: Harvard University Press. Dworkin, R. (2002). Book Review: Thirty Years On, Harvard Law Review, 115:16551687. Dyzenhaus, D. and Taggart. M. (2007). Reasoned Decisions and Legal Theory, in D. E. Edlin (ed.), Common Law Theory. Cambridge: Cambridge University Press, 134-167. Dyzenhaus D. (2004). The Genealogy of Legal Positivism, Oxford Journal of Legal Studies, 24:39-66. Estlund, David M. (1997) Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority, in J. Bohman and W. Rehg (eds.), Deliberative Democracy: Essays on Reason and Politics. Cambridge: MIT Press, 1997, 173-204. Finnis, J. (1980). Natural Law and Natural Rights. Oxford and New York: Oxford University Press. Foucault, M. (2000) The Subject and Power, in J. D. Faubion (ed.), Power. New York: The New Press, 326-348. Fuller, L. L. (1965). Irrigation and Tyranny, Stanford Law Review, 17:1021-1042. Giddens, A. (1971). Capitalism and Modern Social Theory: An Analysis of the Writings of Marx, Durkheim and Max Weber. Cambridge: Cambridge University Press. Habermas, J. (1998). Between Facts and Norms: Contribution to a Discourse Theory of Law and Democracy. Translated by W. Rehg. Cambridge: MIT Press. Hacking, I. (1999). The Social Construction of What? Cambridge and London: Harvard University Press. Hamilton, A., Madison J., and Jay J. (1999). The Federalist Papers. New York: Penguin.

31

Hart, H. M. Jr. and Sacks A. M. (1994). The Legal Process: Basic Problems in the Making and Application of Law. Edited by W. N. Eskridge Jr. and P. P. Frickey. Westbury, New York: The Foundation Press. Hart, H. L. A. (1994). The Concept of Law. Second edition. New York: Oxford University Press. Hart, H. L. A. (1958). Positivism and the Separation of Law and Morals, Harvard Law Review, 71:593-629. Himma, K. E. (2007). Revisiting Raz: Inclusive Positivism and the Concept of Authority, APA Newsletter 6(2):20-27. Hobbes, T. (1996). Leviathan. Revised student edition, edited by R. Tuck. Cambridge: Cambridge University Press. Kant, I. (1983). To Perpetual Peace: A Philosophical Sketch, in Perpetual Peace and Other Essays. Translated by Ted Humphrey. Indianapolis and Cambridge: Hackett Publishing, 107-139. Kant, I. (1996). The Metaphysics of Morals. Translated by Mary Gregor. Cambridge: Cambridge University Press. Kelsen, H. (1967). Pure Theory of Law. Translated by Max Knight. Berkeley and Los Angeles: University of California Press. Leiter, B. (2007) Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy. Oxford and New York: Oxford University Press. Lieberman, D. (2008). Benthams Democracy, Oxford Journal of Legal Studies, 28:605-626. Locke, J. (2007). Second Treatise of Government. U.S.A.: BN Publishing. Marmor, A. (2005). Interpretation and Legal Theory. Second edition. Oxford and Portland: Oxford University Press. Marmor, A. (2011). An Institutional Conception of Authority, Philosophy and Public Affairs, 39:238-261. Mill, J. (1992). Essay on Government, in Political Writings. Edited by Terence Ball. Cambridge and New York: Cambridge University Press, 1-42. 32

Murphy, L. (2005). Concepts of Law, Australian Journal of Legal Philosophy, 30:1-18. Perry, S. R. (2007). Two Problems of Political Authority, APA Newsletter, 6(2):31-37. Plato. (1892). Crito, in The Dialogues of Plato, vol. II. Third edition. Translated by B. Jowett. London: Oxford University Press, 137-156. Postema, G. J. (1986). Bentham and the Common Law Tradition. Oxford: Clarendon Press. Putnam, H. (1975). The Meaning of Meaning, in Philosophical Papers, vol. 2, Mind, Language and Reality. Cambridge: Cambridge University Press, 215-271. Raz, J. (1979). The Authority of Law: Essays in Law and Morality. Oxford: Clarendon Press. Raz, J. (1986) The Morality of Freedom. Oxford and New York: Oxford University Press. Raz, J. (1990). Introduction, in Joseph Raz (ed.), Authority. New York: New York University Press, 1-19. Raz, J. (1994). Authority, Law, and Morality, in Ethics in the Public Domain: Essays in the Morality of Law and Politics. Oxford and New York: Oxford University Press, 194-222. Raz, J. (1999). Practical Reason and Norms. Second edition. Oxford: Oxford University Press. Raz, J. (2006). The Problem of Authority: Revisiting the Service Conception, Minnesota Law Review, 90:1003-1044. Rousseau, J-J. (1987). On the Social Contract. In The Basic Political Writings. Translated by Donald A. Cress. Indianapolis: Hackett Publishing Company, 139-227. Schauer, F. (1994). Critical Notice of Roger Shiners Norm and Nature: The Movements of Legal Thought, Canadian Journal of Philosophy 24:495-509. Schmitt, Carl. (1996) The Concept of the Political. Translated by G. Schwab. Chicago: University of Chicago Press. Shapiro, S. J. Authority, in J. Coleman and S. Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford, Oxford University Press, 382-439. Simmons, A. J. (1999). Justification and Legitimacy, Ethics, 109:739-771.

33

Spinoza, B. (2001). Theological-Political Treatise. Second edition. Translated by Samuel Shirley. Indianapolis and Cambridge: Hackett. Unger, R. M. (1996). What Should Legal Analysis Become? London and New York: Verso. Waldron, J. (1996). Kants Legal Positivism, Harvard Law Review 109:1535-1566. Waldron, J. (1999). Law and Disagreement. Oxford: Oxford University Press. Waldron, J. (2001). Normative (or Ethical) Positivism, in J. Coleman (ed.), Harts Postscript: Essays on the Postscript to the Concept of Law. Oxford and New York: Oxford University Press, 410-434. Waldron, J. (2002). Legal and Political Philosophy, in J. Coleman and S. Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford and New York: Oxford University Press. Weber, M. (1968). Economy and Society: An Outline of Interpretive Sociology. Edited by G. Roth and C. Wittich. Translated by E. Fischoff et al. Berkeley: University of California Press. Wittgenstein, L. (1958). Philosophical Investigations. Second edition. Translated by G. E. M. Anscombe. Oxford: Basil Blackwell.

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