Abstract
The tradition of legal positivism, we have now observed, has consistently expelled the authorizing origin of posited norms/rules from what officials consider legal existence. Hobbes required, in the form of a social contract of autonomous authors, that the officials never return to the origin of their civil laws in a natural condition. Jean-Jacques Rousseau acknowledged the importance of legislated laws only to supplement a General Will which, I argued from his works, was divine. John Austin took up the notion of `the habits of the people’ only to expel them as laws improperly so called because the people were not a distinct and assignable author on the institutional hierarchy that officials consider the ‘real’ and the ‘practical.’ Kelsen realized the importance of a pure concept as the presupposition of the trace of authority through the language of officials, but he understood the concept in such a manner that it was unsignified and unsignifiable and, as such, invisible to the language of the officials. H.L.A. Hart shifted the authorizing origin to the immediacy of bonding that an official experiences with a judicial practice only to exclude such an immediacy as pre-legal. The legal, for Hart — as for Hobbes, Rousseau, Austin, and Kelsen — was written in scripts that distinct and assignable officials, situated on a pyramidal hierarchy, authored. With each great thinker, the most important source orarcheof authorizing posited laws was inaccessible from the language of legal norms/rules.
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References
Raz, “Rights and Individual Well-Being” (1992), inEthics in the Public Domain:Essays in the Morality of Law and Politics(Oxford: Clarendon Press, 1995): 44–59, 53–5.
For the importance of the experiential body in legal interpretation, see generally, ConklinThe Phenomenology of Modern Legal Discourse(Aldershot/Brookfield: Dartmouth/Ashgate, 1998).
As explained in ConklinPhenomenology of Modern Legal Discourse21–4.
Raz, “Facing Diversity: the Case of Epistemic Abstinence,” (1990) in RazEthics in the Public Domain60–96, 83.
Raz, “The Politics of the Rule of Law” (1990), inEthics in the Public Domain370–78, 374.
Raz, “Facing Diversity,” 89.
Raz, “Liberalism, Scepticism and Democracy” (1989), inEthics in the Public Domain97–124, 115.
Raz, “Liberalism,” 116.
Raz with Avishi Margalit), “National Self-determination” (1990)in Ethics in the Public Domain125–45, 139.
Raz, “The Politics of the Rule of Law,” 375.
RazThe Authority of Law(Oxford: Clarendon Press, 1979), 259.
Raz, “The Politics of the Rule of Law,” 376.
RazThe Authority of Law259.
See ConklinThe Phenomenology of Modern Legal Discourse136–65.
RazThe Authority of Law259. Emphasis added.
Raz, “The Obligation to Obey: Revision and Tradition” (1987), inEthics in the Public Domain341–54, 346.
Raz, “The Politics of the Rule of Law,” 378.
Raz, “Government by Consent” (1987), inEthics in the Public Domain355–69, esp. 366–69.
This trust draws from what H.L.A. Hart described as a bonding of individual with institution in internal statements. Raz admits as much in “Government by Consent,” 368, fn. 10.
RazThe Authority of Law250–53.
Raz, “The Obligation to Obey,” 354.
Raz raises a problem here, though. One may identify with society without respecting its legal institutions. An identity with society may require an active opposition or, conversely, an active respect for the law. And this problem takes one to the moral issues of the common good. RazThe Authority of Law
RazThe Authority of Law233–49; “The Obligation to Obey,” 343, 347, 350.
RazThe Authority of Law261.
RazThe Authority of Law252.
RazThe Authority of Law257.
Raz, “Duty to Obey,” 354.
I describe how this gap arises in an important case in Conklin, “The Transformation of Meaning: Legal Discourse and Canadian Internment Camps,”The International Journal for the Semiotics of Law9 (1996): 227–56.
Raz, “Liberating Duties” (1989), inEthics in the Public Domain29–43, 36–7.
Raz, “Rights and Individual Well-Being,” 47.
Raz, “Rights and Individual Well-Being,” 47.
Raz, “Rights and Individual Well-Being,” 44.
Raz, “Authority, Law and Morality” (1985), inEthics in the Public Domain210–37, 222. Raz is erroneous because Dworkin stresses that the “best moral justification” is conditioned by the unwritten assumptions and style of writing of the genre in which the official finds himself or herself. Like Aristotle’s sense of a good constitution in thePoliticsDworkin himself distinguishes the best moral justification from the ideal, the interpretive community from an ideal community.
This is explained in ConklinThe Structuralism of Analytical Jurisprudence(forthcoming).
Raz, “On the Autonomy of Reasoning” (1993), inEthics in the Public Domain326–40, 339.
A common good transcends any rights-based morality. Raz, ‘The Nature of Law“ (1983), inEthics in the Public Domain195–209, 209. Rights should be appreciated in the context of the quest for such a common good. First, conflicts between individuals’ rights do not monopolize the types of social conflict in society. Raz, ”Liberating Duties“ (1989), inEthics in the Pulbic Domain29–43, 34. Common goods may be enjoyed in a non-competitive way. One does not possess a right to such goods because others are not held to a duty to respect one’s individual interests in the right. Nevertheless, public institutions may possess duties to provide and preserve such common goods, independent of any support for individual rights. Secondly, rights-based morality diminishes the status of rights by virtue of their confrontational context between individuals. In contrast, Raz claims that a common good originates individual rights. Thirdly, a right functions to protect one’s interests but not all moral interests. A rights-based morality is narrow, as a consequence, because it misses the balancing of interests that inevitably enters into the deliberation as to whether a duty exists.
The balancing of values draws from “the middle level of morality.” The middle level of morality refers to cognitive objects rather than to the meant objects of an experiential constitution of meaning Raz, “Liberating Duties,” 35–6. For the distinction between meant and posited objects as well as examples of meant objects, see ConklinThe Phenomenology of Modern Legal Discourse130–68. For examples of posited objects, see ConklinPhenomenology of Madera Legal Discourse69–101, 234–35.
Raz, “Authority, Law and Morality,” 229.
Raz, “The Nature of Law,” 207.
Raz, “The Nature of Law,” 209.
See, e.g., RazThe Authority of Law 72–5.
Raz, “The Inner Logic of Law” (1984), 238–53, at 241–50. Also see “On the Autonomy of Legal Reasoning” (1993), 326–40333; The Authority of Law31. In “Legal Rights,” Raz adds three specific circumstances where a law may grant moral rights: that is, where legal rights become legally recognized moral rights. First, the law may change one’s legal interests, thereby changing his or her moral rights, and may then proceed to recognize the latter moral rights. Such occurs, for example, when a legislature changes one’s property interests by enacting a property law. The latter changes a social practice into a moral entitlement: one may be entitled to the privacy of a certain level of residential building without the influx of factories in the neighbourhood. And that changed legal interest, in turn, is recognized ‘by the law.’ Secondly, a legal interest, such as, say, of a tenant, may exist only with the consent of another, such as, say, of a landlord. Third, although one may initiallydicagreewith the substantive content of a law (such as, say, a law that proscribes the use of contraceptives), one may have a moral obligation to agree with a legislature’s proscription because one already shares a deep respect for the legislature’s authority.
Raz, “The Relevance of Coherence” (1992), inEthicsinthe Public Domain277–325, 287–88.
Raz, “The Relevance of Coherence,” 301.
Raz, “The Relevance of Coherence,” 289.
Raz, “On the Autonomy of Legal Reasoning,” 335, 338–39.
Raz, “On the Autonomy of Legal Reasoning,” 339.
Raz distinguishes between.evaluation and moral reasoning. “Authority, Law and Morality,” 237.
RazPractical Reason and Norms(Princeton: Princeton University Press, 1990, 2d edn.; London: Hutchinson, 1979), 12.
Raz, “On the Autonomy of Legal Reasoning,” 339, 340. Raz also describes this institutional context of resolving the values to be posited in terms of “naturalistic” description as opposed to a moral description. Raz, “Authority, Law and Morality,” 235. The social facts (about institutions) can be described without resort to the moral justifications of the content of particular decisions that side with one value over another.
Raz, “On the Autonomy of Legal Reasoning,” 338.
Raz, “On the Autonomy of Legal Reasoning,” 339.
Raz, “The Relevance or Coherence,” 287.
RazThe Authority of Law44–5, 134;Practical Reason and Norms162–63, 165–66. As Raz defines legal positivism, a law is posited if “it is made law by human beings.”The Authority of Law38.
RazThe Authority of Law22–5; 234–37;Practical Reason and Norms141–46; and “Reasons for Action, Decisions and Norms” (1975), in ed. Joseph RazPractical Reasoning(Oxford: Oxford University Press, 1978), 128–43. Raz is not alone in his privileging of the institutional source of a posited norm. Ota Weinberger and Neil MacCormick have independently elaborated institutional theories of posited law. See generally, Ota Weinberger, “Neo-Institutionalism: My Views on the Philosophy of Law,” in ed. Luc J. WintgensThe Law in Philosophical Perspectives(Dordrecht: Kluwer, 1999), 253–72;Law Institution and Legal Politics(Dordrecht: Kluwer, 1991). Neil MacCormick and Ota WeinbergerAn Institutional Theory of Law: New Approaches to Legal Positiv-ism(Dordrecht: Reidel, 1986). MacCormick, “My Philosophy of Law,” in WintgensThe Law in Philosophical Perspectives120–45; MacCormick and Zenon Bankowski, “Speech Acts, Legal Institutions and Real Laws,” in MacCormick and Peter BirksThe Legal Mind: Essays for Tony Honore(Oxford: Clarendon Press, 1986), 121–33.
RazPractical Reason and Norms36–45.
RazPractical Reason and Norms64.
RazPractical Reason and Norms69–71.
In a sense, Raz is advocating a rule utilitarianism: one ought to follow a certain institutional rule even though, in a particular circumstance, the balance of values and reasons would lead to a different rule in the particular circumstances. Thereference to the institutional ruleis for the greater good. The institutional rule excludes a consideration of the substantive merits of the problem for the good of the structure as a whole. An exclusionary reason manifests such a rule utilitarianism because one takes the exclusionary rule, not the merits of the particular rule, as a reason for action.Practical Reason and Norms194. 195–96. If one re-examined the justificatory arguments of the particular rule on each occasion when it possibly applied, then there would no longer be a rule. Each circumstance would lead to a different resolution, depending upon the posit of the value.
RazPractical Reason and Norms72–3.
Raz, “Authority, Law and Morality,” 213.
Raz, “Authority, Law and Morality,” 227.
RazPractical Reason and Norms64; “Authority, Law and Morality,” 216–17, 225–26. A third issue is ‘how is legal authority acquired?’ The identity of a rule goes to its content. ‘What extra-legal considerations does a judge incorporate into his or her judgment?’ Dworkin asks. Dworkin merges the identity problem with Raz’s authority issue by holding that authority addresses the morally best justification of a decision, given the narrative structure of a particular society. The morally best justification, Raz points out, presumes that an institutional source has posited the rule. Thus, even Dworkin accepts such an institutional structure as a given, according to Raz. Ibid., 224. Yet Dworkin fails to appreciate that such an institutional structure, as the ultimate source of authority, logically precedes the deliberative stage of moral-political argument.
Raz, “Legal Rights” (1984), inEthics in the Public Domain254–76, 256.
RazThe Authority of Law24.
RazPractical Reason162–65.The Authority of Law134.
Raz, “Legal Rights,” 255.
The role of a legal profession in a bureaucracy is frist examined in Max Weber, “Bureaucracy,” inFromMaxWeber: Four Essays in Sociologytrans. H.H. Gerth and C. Wright Mills (London: Routledge ‖ Regan Paul, 1970): 196–244;The Social Interpretation of Realityed. J.E.T. Eldridge (New York: Charles Scribner’s Sons, 1971), esp. Pt. 1 ‖ 3.
RazPractical Reason and Norms25.
RazThe Authority of Law23–4.
Raz, “Authority, Law and Morality,” 221.
RazThe Authority of Law137–39.
The authority or morally binding character of a legal rule does not depend upon the personal belief that a rule is a good one on the balance of interests and values. Further, the fact that a particular rule is practised and the subject of emotive values of a community does not make the mle legal. A legal rule must possess a normative or ought character. The fact that a rule is practised may explain the conven-tionality of rules. But to state that ‘such and such’ is a legal rule is not to state that it is a practice. Rather, it is to state that one ought to behave in a certain manner. For these two reasons, and others, Raz rejects H.L.A. Hart’s practice theory of rules. RazPractical Reason and Norms 56–8.
KelsenPure Theory of Lawtrans. Max Knight (Berkeley: University of California Press, 1967; 1970) 218 at fn. 82 as quoted in RazThe Authority of Law140.
Raz, “On The Authority and Interpretation of Constitutions,” in ed. Larry AlexanderConstitutionalism: Philosophical Foundations(Cambridge: Cambridge University Press, 1988), 152–93, 190.
RazThe Authority of Law48.
See esp.Raz The Authority of Law42, 140.
RazThe Authority of Law142–43.
RazPractical Reason and Norms32.
RazPractical Reason and Norms33.
RazThe Authority of Law213.
RazThe Authority of Law211.
RazThe Authority of Law221.
RazPractical Reason and Norms216.
RazPractical Reason and Norms171–75.
RazPractical Reason and Norms 175.
RazPractical Reason and Norms15–20.
RazPractical Reason and Norms198.
RazPractical Reason and Norms170.
RazPractical Reason and Norms193.
See esp. Raz, “On the Authority and Interpretation of Constitutions,” 159.
Raz, “Authority and Interpretation of Constitutions,” emphasis added. One should note Raz’s caveat “up to a point,” although the caveat is not critical to my argument here.
Raz, “Authority and Interpretation of Constitutions,” 158. Emphasis added.
Raz, “Authority and Interpretation of Constitutions,” 175.
Raz, “Authority and Interpretation of Constitutions,” 190.
Raz, “Authority, Law and Morality,” 216.
The distinction between a cognitive and meant object is elaborated in ConklinThePhenomenology of Modern Legal Discourse, 103–107, 125–31.
RazThe Authority ofLaw 62.
RazThe Authority of Law 63.
The distinction is made in ConklinPhenomenology of Modern Legal Discourse130–68.
RazThe Authority of Law255.
RazThe Authority of Law63.
RazThe Authority of Law148.
Raz, “Authority, Law and Morality,” 221.
This distinction is elaborated more generally in William E. ConklinThe Phenomenology of Modern Legal Discourse135–68.
RazPractical Reason and Norms170–71
Raz, “The Nature of Law,” 195–98.
See text supra section 2(e) between pp. 253–7, notes 61–72.
RazThe Authority of Law 87.
Raz, “On the Authority and Interpretation of Constitutions,” 158–60, 184–85.
RazThe Authority of Law98–99.
RazThe Authority of Law110.
RazThe Authority of Law19, 116–18.
RazThe Authority of Law85.
RazThe Authority of Law72.
See generally, William E. ConklinImages of a Constitution(Toronto: University of Toronto Press, 1989) and ConklinIn Defence of Fundamental Rights(Alphen aan den Rijn: Sijtoff ‖ Noordhoff, 1979).
Local Prohibition Reference[1896] AC 348 (PC). For Pigeon’s and Beetz’ theory of the autonomy of the provinces, see Conklin, “The Constitutional Prism of Louis-Philippe Pigeon and Jean Beetz,” 30Les Cahiers de Droit30 (1989): 113–36.
The Law of the Constitution(London: Macmillan, 1885).
Reference re Regulation and Control of Aeronautics in Canada[1932] AC 54; [1932] 1 DLR 58 (PC).
Reference re Board of Commerce(1920), 60 SCR 456; 54 DLR 354.
Edwards v. AG Canada[1930] AC 123; [1930] 1 DLR 98 (PC);Francis Pulp and PapereManitoba Free Press[1923] AC 695; [1923] 3 DLR 629 (PC).
Reference re Anti-Inflation[1976] 2 SCR 373; 68 DLR (3d) 452.
See generally, ConklinImages of a Constitution.
RazPractical Reason and Norms10.
RazPractical Reason and Norms193.
Raz, “Authority, Law and Morality,” inEthics in the Public Domain210–37.
Raz, “Authority, Law and Morality,” 237.
RazThe Authority of Law97.
RazThe Authority of Law69.
RazThe Authority of Law 97.
RazThe Authority of Law99.
RazThe Authority of Law98.
RazThe Authority of Law 69.
RazThe Authority of Law.
Raz, “The Politics of the Rule of Law,” 378.
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Conklin, W.E. (2001). Forgetting the Act of Forgetting: Raz’s Inaccessible Origin of Legal Reasoning. In: The Invisible Origins of Legal Positivism. Law and Philosophy Library, vol 52. Springer, Dordrecht. https://doi.org/10.1007/978-94-010-0808-2_10
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