Abstract
This chapter considers whether legal requirements can constitute reasons for action independently of the merits of the requirement at hand. While jurisprudential opinion on this question is far from uniform, sceptical (or ‘deflationary’) views are becoming increasingly dominant. Such views typically contend that, while the law can be indicative of pre-existing reasons, or can trigger pre-existing reasons into operation, it cannot constitute new reasons. This chapter offers support to a somewhat less sceptical (but still qualified) position, according to which the fact that a legal requirement has been issued can be a reason for action, yet one that is underpinned by bedrock values which (under certain conditions and constraints) law is apt to serve. Notions discussed here include a value-based conception of reasons as facts (Sect. 1); a distinction between complete and incomplete reasons (Sect. 2); and David Enoch’s idea of triggering reason-giving (Sect. 3). Following a discussion of criticism against the view adopted here (Sect. 4), the chapter concludes by considering some more ‘robust’ conceptions of law’s reason-giving capacity (Sect. 5).
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Notes
- 1.
See, e.g., the deflationary positions put forward in Regan (1989), pp. 1003–1033, 1086–1095; Regan (1990), Enoch (2011a). Cf. moderately deflationary elements featuring in Marmor (2018). Marmor’s account differs from the deflationary position presented in the main body text and is, I think, closer to the views I will defend in Sects. 1–4. Similarly, some of Fred Schauer’s remarks suggest a certain affinity with deflationism (see, e.g., Schauer 2016), but I am not sure if the extent of his deflationary affinity marks a discord with my claims in Sects. 1–4. I should also note that the label ‘deflationary’, in connection with legal normativity, can be used for a range of possible claims, including ones I do not discuss here. See, e.g., Bix (2018) and the symposium published in Revus (2019) 37 (https://journals.openedition.org/revus/5195) on Bix’s essay.
- 2.
- 3.
I am framing my objective in these rather modest terms (“facilitate acceptance”) because a fair amount of what will be said here does not squarely establish the above view, but rather only draws attention to some notions against the background of which it becomes comparatively easy to accept that view.
- 4.
Occasionally, I will speak of a legal requirement as a reason for action. When doing so, I am merely using terminological shorthand that should be read as saying that the fact of there being a legal requirement is a reason for action.
- 5.
Sect. 5 herein.
- 6.
Gur (2018), Chaps. 7–9.
- 7.
I am not discussing herein reasons in the motivational sense, or what some writers have labelled “motivating reasons for action”. On the distinction between the normative and motivational senses of reasons, see, e.g., Smith (1994), pp. 94–98; Dancy (2003), pp. 1–5, 20–25; Parfit (2001), p. 17. Other writers have used alternative terms in this connection, e.g., “justifying” or “grounding” instead of “normative” reasons, and “explanatory” instead of “motivating” reasons. See, e.g., Raz (2011), pp. 13–35, where Raz distinguishes between normative and explanatory reasons. Cf. Alvarez (2010)), Chap. 2. For jurisprudential references to the normative/motivating-reasons distinction, see, e.g., Coleman (2001), pp. 71–72; Enoch (2011a), p. 15; Bix (2011), pp. 413–414; Ehrenberg (2016), pp. 150–152.
- 8.
That is, such that one judges it to be warranted from the viewpoint of the normative universe at large, rather than, say, merely identifying that it is supposed by some social practice, or that it features in the perception of some people.
- 9.
- 10.
I should note incidentally that, in comparison to value-based views of reasons, desire-based views of reasons seem to me, prima pacie, to fit less smoothly into a discussion of law’s normative force. For it is a salient and important feature of law that it seeks to address reasons for action even to those who have no desire or want that corresponds to what it requires. And though the law does not always have the reason-giving power it purports to have, we do not attribute such failures to the absence of this or that desire on the part of a given subject. But a question might be raised here: could desire-based/internalist conceptions fully account for law-given reasons by focusing on more abstract and less immediate human desires whose fulfilment is helped or made possible by the law? Such an exercise, it seems to me, would require considerable strain, but I express no stronger view on whether it might succeed.
- 11.
Or, at least, this is what we are referring to in the explicit part of our statement.
- 12.
On reasons as facts see, e.g., Raz (1990), pp. 17–20. See also Gardner and Macklem (2002), pp. 442–447. Factualist views of reasons are often contrasted with the position that reasons are some mental states (e.g., beliefs, pro-attitudes such as desires, or both)—a position sometimes referred to as a “psychologistic” approach to reasons.
- 13.
Raz (1990), p. 17.
- 14.
Ibid., 18.
- 15.
Ibid.
- 16.
In this connection, see also Gardner and Macklem (2002), pp. 449–450, where the authors point out “the error of thinking that while there may be mixtures of facts and values there are no true compounds of the two”, and give examples of “value-laden facts”, such as “the fact that the Lake District is beautiful, or the fact that the Thames is dangerous” (ibid., 450).
- 17.
In defence of a value-based theory of reasons, see, e.g., Bond (1983), Parfit (2001), Gardner and Macklem (2002), pp. 450–457. Raz, too, seems generally to support a value-based theory of practical reasons (see, e.g., Raz 1999, pp. 22, 29–31, 63–64; Raz 2011, pp. 70, 75–79), albeit with certain qualifications (see, e.g., Raz 1999, p. 62; Raz 2016, pp. 141–156). See other relevant references cited in Maguire (2016), p. 234, n. 2. Cf. Chang (2004), pp. 56–90, who advocates a “hybrid” view, according to which “[s]ome practical reasons are provided by the fact that the agent wants something, while others are provided by the fact that what she wants is of value” (ibid., 57).
- 18.
A notable alternative is Scanlon’s “buck-passing view” of value, according to which reasons have an explanatory priority over value (Scanlon 1998, pp. 95–100). But on this view, too, reasons are grounded in properties, or features of the world, external to the agent, and not in the agent’s subjective states, such as her desires. In this light, it has been suggested by Parfit that the buck-passing view is reconcilable with a value-based theory of reasons, so long as the latter makes no reference to “value”, “good”, or “bad” save as abbreviations of reason-giving properties, such as safe, effective, painful, etc. (Parfit 2001, p. 20).
- 19.
- 20.
I have considered the ‘fair play’ argument (though not specifically in the context of reasons discourse) in Gur (2013), pp. 333–337.
- 21.
I am not addressing here the question of whether—when certain prerequisites of legitimate authority are met—law can generate not merely reasons for action, but what Raz calls pre-emptive or protected reasons (which include second-order exclusionary reasons). I confine myself at this point to a more modest claim focused on what Raz calls first-order reasons for action. I have examined the pre-emption thesis elsewhere (Gur 2018, Chaps. 2–4) and will briefly refer to it in Sect. 5 below.
- 22.
Raz (1990), pp. 22–25. See also the discussion in Gardner and Macklem (2002), pp. 447–450. According to Raz, a complete reason comprises either an “operative reason” (such as the fact that X is a value: e.g., if respect for persons is a value, that fact is an operative reason, because my belief in that fact entails a belief that there is a reason to respect people) or a combination of an “operative reason” and an “auxiliary reason” (the latter of which is defined residually as a reason that is not an operative one)—Raz (1990), pp. 33–35. Examples of auxiliary reasons include “identifying reasons”, whose function is to “help identify the act which there is reason to perform” (ibid., 34), and “strength-affecting reasons”, whose function is to “help determine the relative strengths of competing reasons” (ibid., 35). As I understand Raz, he sees directives issued by a legitimate authority as operative reasons. But I leave this claim to one side, partly because the class of legal directives I discuss is not necessarily coextensive with directives issued by a Razian legitimate authority.
- 23.
The above statement refers to “explanation”, but the reasons referred to in the explanation are reasons that the agent (Jenny) believes to be normative, not merely explanatory in the motivational sense.
- 24.
Raz (1990), p. 24. He adds the following qualification: “However, the fact that p is not a complete reason if the statement that p trivially satisfies the definition only because it entails that some person knows some fact s, and s satisfies the definition” (ibid.).
- 25.
I set aside here the possibility that Laura believes that the reason to ϕ has been excluded by another, second-order exclusionary reason. Note, however, that even reasons subject to Razian exclusion do not cease to exist. As Raz remarks: “Exclusionary reasons are reasons for not acting for certain valid reasons. They do not nullify or cancel those reasons …” (ibid., 184); “the reasons which are to disregard are not canceled” (Raz 1989, p. 1158).
- 26.
Enoch (2011a), esp. 4–5, 26–33. See also Enoch (2011b). A somewhat similar notion appears in Marmor’s taxonomy of norms in relation to what he terms “reason-instantiating norms” (Marmor 2018), Sect. III. But, unlike some of Enoch’s remarks, Marmor’s description of the mode of operation of “reason-instantiating norms” does not seem to be inharmonious with my comments in this section.
- 27.
Enoch (2011a), p. 4.
- 28.
Ibid., 28.
- 29.
Possibly it was psychologically dormant, but Enoch, as I understand him, means something else: that it was normatively dormant.
- 30.
To wit, this reason was not dormant because, presumably, before the grocer’s action and regardless of the milk price, you (like most people in ordinary circumstances) had at least some, and probably countless, opportunities and ways to save/spend money that would be useful in the future. As noted in the body text, however, I would agree that a reason to save money could be normatively inactive or temporarily inapplicable to you under some, unusual circumstances—e.g., if (and so long as) you are stranded on a desert island with no money (or remote access to money) and no need or opportunity to use money while on the island.
- 31.
And that doesn’t seem to me to be changed by the distinction between ‘wide-scope’ and ‘narrow-scope’ conditionals about reasons (see Enoch 2011a, pp. 7–8).
- 32.
- 33.
Attitudes whose formation and endurance may well be attributable, at least in part, to further characteristics (or perceived characteristics) of the legal system, such as its overall adherence to ‘rule of law’ standards and a reasonable level of fairness and justice displayed by its laws and adjudicative processes. See in this connection Sarat (1977a, b), Tyler (2006), pp. 71–178; Sunshine and Tyler (2003).
- 34.
There are disagreements over the empirical questions of how common normative attitudes towards legality itself are, and what part such attitudes have in the causal explanation of people’s compliance with the law. The most notable study in this regard is Tyler (2006). This study has been the subject of relatively recent criticism by legal theorists such as Claus (2012), pp. 65–70 and Schauer (2015), pp. 57–67, 73–74. I have discussed this debate in Gur (2018), pp. 184–192.
- 35.
Marmor has recently argued against the thought that there is some general feature of law that renders it normatively unique (Marmor 2018, esp. 95 and Sect. VI). As I understand his argument, it focuses on law’s normative modality—namely, he argues that there isn’t anything unique about the way law gives reasons for action, for similar modes of reason-giving can be found in other normative phenomena or practices. Now, I should clarify that this argument does not stand in opposition to the claim I am making here. I am not denying that law’s normative modality—the way it gives reasons—is present also in some non-legal normative phenomena or practices. I am only suggesting that there are some situations in which law (due to some of its attributes) is comparatively well placed to perform a socially beneficial function, and that, to this extent, it is capable of giving reasons for action. As far as I can see, this is not a claim Marmor denies.
- 36.
I should add that, even to the extent that a function performed by the law is such that it could also be performed by means other than the law, this does not seem to me necessarily to undermine the thought that the law’s requirements are reasons for action—at least if those other, non-legal means are less readily available than legal means (e.g., because the latter are the method already in common use in one’s society) or if there are other considerations that render the latter preferable.
- 37.
The above question refers to a legal system (S), but a similar question can be framed by reference to a body of laws that forms only a part of S (say, S’s body of commercial laws) and meets the above standard (i.e., the standard of being reasonably just and fair, etc.). My comments in the following paragraph of the text refer to the system-wide question, but these comments seem to me applicable, mutatis mutandis, to the domain-wide question too.
- 38.
According to which reasons for action are grounded in some ultimate desires of the agent to whom they apply.
- 39.
A similar argument is mentioned by Hart (1982), p. 265, though he mentions it as part of a more moderate objection to his conception of authoritative reasons.
- 40.
Cf. Hart’s following statement (1982), p. 254: “[T]he commander intends his expressions of intention to be taken as a reason for doing them. It is therefore intended to function as a reason independently of the nature or character of the actions to be done”. I am not sure whether Hart imputes to the commander an intention similar to that mentioned in the body text.
- 41.
Though it is worth noting that the very notion that law claims to give reasons is not free from controversy—see, e.g., relevant doubts expressed in Essert (2013).
- 42.
- 43.
Raz (1986), p. 53. In Raz’s words: “[The normal justification thesis] claims that the normal and primary way to establish that a person should be acknowledged to have 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” (ibid.).
- 44.
Ibid., 59.
- 45.
Ibid., 46.
- 46.
Thus, e.g., he notes: “No blind obedience to authority is here implied. Acceptance of authority has to be justified, and this normally means meeting the conditions set in the justification thesis. This brings into play the dependent reasons, for only if the authority’s compliance with them is likely to be better than that of its subjects is its claim to legitimacy justified” (Raz 1995, p. 215).
- 47.
Thus, e.g., immediately after the passage in the previous footnote, Raz notes: “At the level of general justification the pre-empted reasons have an important role to play. But once that level has been passed and we are concerned with particular action, dependent reasons are replaced by authoritative directives” (ibid.).
- 48.
- 49.
Gur (2018).
- 50.
Ibid., Chaps. 2–4.
- 51.
Ibid., 127–29, 168–69.
- 52.
Ibid., Chaps. 7–9.
- 53.
The above-noted senses of value-dependence and value-independence are mutually reconcilable because there is a difference between, on the one hand, the factors that contribute to the formation of an attitude and a concomitant disposition, and, on the other hand, the conditions that trigger behavioural manifestations of that disposition in a particular case. The following non-legal example may help to further illustrate this point. Suppose, for example, I have acquired, through a relatively prolonged assimilation of the view that ‘gambling generally tends to have destructive effects on one’s life’, a general and firmly embedded disposition against gambling. Having materialized, my disposition (if strong enough) may lead me to refrain from gambling even on an occasion when I am presented with arguments, which I find persuasive, as to why gambling on that particular occasion would be desirable and harmless, and why my assessment of these arguments is not prone to error in the present conditions. I have acquired the disposition through recourse to a relevant rationale, but, once the disposition is in place, it may exert its influence even when the rationale for its acquisition is absent. A similar distinction is applicable to the law-abiding disposition mentioned in the body text, thus making it possible for the disposition to be value-independent in one sense (concerning the conditions for its activation) and value-dependent in another sense (concerning the process of its formation).
- 54.
As such, it is not a mere reflection of some or all of the reasons for action that apply to us in a given situation.
- 55.
- 56.
Raz (1990), p. 36, 40, 189, 190.
- 57.
- 58.
Sect. 3.
- 59.
Namely, I have suggested that, since these reasons are general, they were not dormant if there were other ways (even if deficient ones) to satisfy or partly satisfy them.
- 60.
Sect. 4.
- 61.
Gur (2018), Chaps. 7–9.
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Gur, N. (2019). Legal Facts and Reasons for Action: Between Deflationary and Robust Conceptions of Law’s Reason-Giving Capacity. In: Bersier Ladavac, N., Bezemek, C., Schauer, F. (eds) The Normative Force of the Factual. Law and Philosophy Library, vol 130. Springer, Cham. https://doi.org/10.1007/978-3-030-18929-7_11
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