January 4, 2009
Perry on Raz, Authority, and Anarchism
I am grateful to those who turned out at 9 am on a Sunday morning (!!!) to an "Author Meets Critics" session at the Eastern APA on my book Naturalizing Jurisprudence (OUP, 2007) and especially to Thom Brooks (Newcastle), the organizer, and Stephen Perry (Penn), the commentator. (Sadly, the other commentator, Ken Himma [Seattle Pacific] was taken ill, but you can get a sense of some of his objections to my work from the papers he has posted on SSRN, especially #4 and #13, which overlap in some measure. Professor Himma is organizing a symposium issue of Law and Philosophy on my book, and I hope he will develop some of his critiques there.)
Stephen Perry's commentary raised a number of quite interesting issues about the right way to understand Raz's account of the authority of law and its compatibility with the kind of "descriptive" jurisprudence to which Raz and Hart (and me, in a different way) are committed. When Professor Perry's paper is publicly available, I will try to address some of those issues, but for now I wanted to at least record one point on which I clearly misconstrued Perry in Chapter 6 of my book ("Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence"). In an earlier paper, Perry had written: "If [the service conception of authority] is right, then the anarchist thesis that the state could never have the moral authority it claims is wrong." I critiqued this as follows (p. 172 of my book):
Raz's account of authority is perfectly compatible with 'the anarchist thesis that the state [more precisely, the laws of the state] could never have the moral authority it claims,' because Raz's thesis is only that all laws (sincerely) claim moral authority, not that they actually have it. The anarchist thesis, in Razian terms, is simply the claim that law always fails to satisfy the Normal Justification Thesis. Nothing in Raz's theory of authority or of law precludes it.
What Perry meant, however, is that the anarchist thesis that authority is impossible is wrong if Raz's service conception of authority is plausible, and that's right: the service conception of authority explains how someone can have a justified claim of authority over another (rational, autonomous etc.) person, which the (Wolffian) anarchist denies is possible. It is true that the service conception of authority is compatible with the anarchist claim that no state ever has authority, but that was not, in fact, the anarchist thesis at issue for Perry.
Of course, it was my great pleasure and we will have to do something again soon.
Looking forward to the Law & Phil issue...
Posted by: Thom Brooks | Jan 16, 2009 12:53:07 PM
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