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November 6, 2007

Authorities that Perform a "Partial Service": An Objection to Raz's Objection to Soft Positivism?

Here is a puzzle Mark Greenberg (UCLA) and I have been discussing, which we have shared with some legal philosophers on e-mail, and thought we would post here:

Raz argues that in order for law to have the capacity to be authoritative, its directives must satisfy the following condition: 

"it must be possible to identify the directive as being issued by the alleged authority without relying on reasons or considerations on which [the] directive purports to adjudicate.” Ethics in the Public Domain, p. 202. 

His argument for this condition is that, otherwise, the directive would be unhelpful to the subjects.  He gives the example of parties to a dispute who are told simply that the arbitrator made the only correct decision, and he points out that this would be entirely unhelpful.  He concludes: “A decision is serviceable only if it can be identified by means other than the considerations the weight and outcome of which it was meant to settle.”  EPD, p. 203

But this conclusion seems false. Suppose that there are ten dependent reasons (call them A, B, C….J) that might bear on practical reasoning about what ought to be done in some instance, and the directive in question (correctly) tells the subject, “You ought to act based on A and B only,” thus telling the subject to exclude considerations of types C through J.  Suppose that the authority is, in fact, correct that A and B are the dependent reasons that ought to be considered in this context, and that in the absence of the directive, the subjects would have considered some number of C through J and reached the wrong result, whereas with the directive, the subjects will focus only on A and B and thus will, in fact, be more likely to do what they really ought to do than otherwise.  It seems that this directive thus performs a “service” for its subjects. Unlike being told that the decision is correct, this directive is helpful, even though (1) to know what they ultimately ought to do the subjects must consider dependent reasons (reasons of the type that fall under A and B), and (2) what the directive tells them to do cannot be identified without recourse to dependent reasons (of the type that fall under A and B). An authority who issued such directives could satisfy the Normal Justification Thesis (since the subjects could be likely better to comply with reasons which apply to them if they accept the directives as authoritatively binding and try to follow them than if they try to follow the reasons which apply to them directly).

If this is right—if what we might call a “partial service” authority (an authority that performs the partial service of telling subjects which dependent reasons are most relevant) can satisfy the Normal Justification Thesis—then doesn’t Raz’s argument against Soft Positivism fail?  That is, couldn’t a Rule of Recognition, by incorporating just some content-based criteria of legal validity perform the partial service for officials of telling them which kinds of dependent reasons they really ought to consider in validating legal norms, and thus enable them to do what they really ought to do more successfully then they would without such guidance?

I should note that my original thought was that Raz could, indeed, allow for "partial service" authorities, but it was Mark who persuaded me that this created a problem for the argument against Soft Positivism.  We both drafted the version of the puzzle, above, as an outgrowth of our conversation.

Posted by Brian Leiter on November 6, 2007 in General Jurisprudence | Permalink


Brian (and Mark) – I don’t see how this is a problem for Raz, but I might (of course) be missing something. An exclusionary reason is a reason for action and a reason to exclude other reasons for action when determining what one, all things considered, ought to do. The reason for action provided by the exclusionary reason is supposed to sum up the excluded reasons. An exclusionary reason does not have to exclude all other reasons for action. If it doesn’t, the new reason for action provided by the exclusionary reason is put in the hopper with the non-excluded reasons to reach an all things considered decision.

Now there are only two things about your example that are unusual. The first is that the excluded reasons are best summed up by offering the agent with no new reason for action at all. The agent is supposed to reason solely upon the non-excluded reasons. That’s strange but not really a counter-example for Raz (perhaps the excluded reasons cancel each other out).

The second is that the exclusionary reason allegedly tells the agent not merely not to consider the excluded reasons, but to consider the non-excluded ones. And it is this, it seems, that is driving your intuition that Raz is in trouble. But Raz would deny that the authority was giving the agent a reason to consider the non-excluded reasons. Those reasons are there recommending that they be considered without the authority and the authority cannot add to that. All the authority is saying is that they are not excluded. They can be given the consideration that they naturally have. The fact that they are then considered is not a problem for Raz's argument against soft positivism.

Posted by: Michael Steven Green | Nov 6, 2007 2:24:16 PM

I read Raz as saying that serviceability is necessary but insufficient to establish a directive's authoritativeness. A directive must also directly *endorse* not just *entail* what the subject ultimately ought to do.

From p312 of Raz, "Authority, Law and Morality" 68 The Monist 295 (1985): "It will now be clear why the incorporation thesis must be rejected if the law does necessarily claim authority. The main thrust of the incorporation thesis is that all that is derivable from the law (with the help of other true premises) is law. It makes the law include standards which are inconsistent with its mediating role for they were never endorsed by the law-making institutions on whose authority they are supposed to rest. The mistake of the incorporation thesis is to identify being entailed by the source-based law with being endorsed by the sources of law."

That quote speaks to what is the second of two conditions that flow from Raz's model. Those are: (1) it must be possible to identify the directive without doing the underlying reasoning, and (2) the directive must represent someone's view of the reasoning. It seems to me your puzzle lacks (2)--but I could be wrong in my reading/application of Raz or my understanding of the puzzle...

Posted by: Raleigh Morgan | Nov 6, 2007 11:34:33 PM

Like Michael, I don't see the problem. As Mark himself says, the norm he has in mind tells officials "which kinds of dependent reasons they really ought to consider in validating legal norms". So even according to Mark it is the officials, not the reasons, that do the validating. Which is exactly what so-called 'hard positivists' claim. The rival 'soft postivist' claim is that the reasons do the validating without the intervention of the official.

Posted by: John Gardner | Nov 7, 2007 6:25:13 AM

I agree with the original post; this seems to be a problem. Raz's way of avoiding it (both in A,L,&M and in his Incorporation By Law) seems to be by insisting on the importance of his "entailed by law != law" distinction, but I don't think this does the work he requires. It's quite true that mandating that Belgian law be used to interpret a contract doesn't incorporate Belgian law into the host legal system, but if the foundational criteria of legality of the legal system *include* moral ones, that's a different situation.

Suppose our criteria of legality include, as necessary elements of valid law, some degree of satisfaction of rule of law values (in addition to standard sources-based considerations). Clearly, other moral considerations besides rule of law values bear on whether the legal norm should be complied with (and/or whether it should have been enacted at all). And the legal authority in this situation is claiming that all of these other considerations--with the exception of the threshold RoL one--have been taken into account, and hence ought to be excluded from the subject's reasoning. A legal norm that required its putative subjects to test its content against these soft-positivist criteria of legality could therefore still pass the service conception test of authority.

Raz (in Incorporation by Law) also seems to be saying that this doesn't give you soft positivism because morality always applies, and law may only alter our use of moral reasons if morality itself dictates. While this is true, I fail to see how it keeps positivism "hard" as opposed to providing us with the critical attitude necessary to appraise whether soft positivist criteria of legality *do in fact* have the authority they claim.

Posted by: X. Trapnel | Nov 7, 2007 6:51:29 PM

I believe the example could be reformulated slightly to immunize it against Michael Steven Green's critique:

An official lays down a legal directive: "In instances of this sort, do X; do not consider C ... J." Moreover, the criteria for legal validity in this system include, 1, that directives be issued by this particular official, and 2, that they be consistent with reasons A and B, which are presumably dependent (moral) reasons applicable to a very wide variety of situations.

This is clearly a directive that could be authoritative: we can easily imagine (expertise, democratic respect, whatever) the official's directive being a reason to do X and to exclude C-J from our deliberations about whether to do X. It has served us, despite requiring us to consult A and B to test its legal validity.

This is positivist, because the fact that A and B rather than C and D are among our criteria for legal validity is a consequence of the social practice that we happen to have; it is soft positivist because, as John Gardner puts it in his comment, the A and B reasons do the validating independent of the official's assertion, should he make one, that A and B are in fact satisfied.

Posted by: X. Trapnel | Nov 7, 2007 7:24:57 PM

It is worth saying, first of all, that *partial* service is not a situation Raz failed to anticipate. Indeed, he assumed authorities’ directives would generally exclude only *some* reasons for action, not all of them. The reason provided by the authority’s directive would then be balanced against the non-excluded reasons to come to an all-things-considered decision.

So the question is only whether the validity of an authority’s directive can depend upon its satisfying these non-excluded reasons. Raz argues that this is impossible, because the law necessarily claims authority and so must be capable of having it. And to be capable of having it, the validity of an authority’s directive cannot depend upon the dependent reasons it is meant to exclude.

To see why Raz is right, compare the following two situations. In situation 1, a doctor orders a certain drug for a patient, but says that his valid medical order is meant to exclude and sum up only *medical* reasons for action. The patient ought to take the reason provided by the doctor’s order and balance it against non-excluded reasons for action (e.g. religious prohibitions on certain types of drugs).

In situation 2, a doctor orders a certain drug for a patient, but claims that the *validity* of his medical order itself depends upon its satisfying the non-excluded reasons for action applicable to the patient. If the drug is prohibited by the patient’s religion, for example, the doctor’s order is not valid.

Raz would claim that situation 2 is a sham. It is really situation 1. The idea that the validity of the medical directive depends upon its satisfying the non-excluded reasons is irrelevant to its status as an authoritative directive. To the extent that the medical directive claims to be authoritative, its validity cannot depend upon its satisfying the non-excluded reasons.

Analogously, if the law necessarily claims authority, Raz is right that any situation in which the validity of the law allegedly depends upon its satisfying non-excluded reasons for action is a sham.

I think X. Trapnel as well as Leiter-Greenberg simply reject Raz’s premise that the law necessarily claims authority. As a result, they think there is nothing wrong with the validity of the law depending upon the satisfaction of non-excluded reasons. Fair enough. (For the record, I reject Raz’s premise too.) But the Leiter-Greenberg scenario is not an internal argument against Raz’s exclusive legal positivism (that is, an argument that works even assuming that the law necessarily claims authority), nor is it one that Raz did not envision.

Posted by: Michael Steven Green | Nov 8, 2007 8:56:46 PM

Re XT's scenario:

The question under discussion is not whether the official *issuing* such a directive is exercising authority (clearly the answer is yes) but whether the directive, interpreted as XT interprets it, is consistent with the authority of the officials whose job it is to *apply* the directive authoritatively (such as judges).

On the hard positivist view the directive must be interpreted so as to make the (legal) force of unexcluded reasons A and B turn on the law-applier's determination of their force. It is that official determination - not the actual force of A and B - that settles the lawfulness or unlawfulness of Xing in a particular case. The directive as stated does not spell this feature out because it is unnecessary to do so. It is a feature dictated by the nature of law.

A soft positivist interpretation, such as XT's, makes the lawfulness or unlawfulness of Xing in a particular case turn on the actual force of reasons A and B rather than on any law-applier's determination of that force. In the process the soft-positivist interpretation effaces the authority of the law-applier. Her ruling does not stand in any case in which she gets the force of A or B wrong. She has no authority regarding the application of the directive in any case in which reason A or B is present. And that is why we cannot interpret reasons A and B as part of the law. If they were part of the law then there would have to be the possibility of an authoritative determination of their legal force as applied to a particular case.

Posted by: John Gardner | Nov 9, 2007 7:14:00 AM

Sorry – I shouldn’t have said that in the Leiter-Greenberg example the validity of the law depends upon the satisfaction of non-excluded reasons (that’s true only of X. Trapnel’s example). In the Leiter-Greenberg example, the directive tells the agent to act on the non-excluded reasons. But I think Raz’s response would be similar in each case.

Posted by: Michael Steven Green | Nov 9, 2007 7:41:43 AM

Concerning John Gardner's example: I'm afraid I still don't see the problem. It's quite true that the lawfulness turns on whether or not the official gets A and B right, and hence she has no authority in cases where she gets them wrong. But she still has authority in cases where she gets C, D, ... , and J wrong! And this is a lot of authority! This is the entire "partial exclusion" point. Compare two putative authorities, both of whom say "Do X, and do not consider C-J"; one is in my soft-positivist criteria of legality system, and so her directive is valid only if in conformity with A and B, while the other is in a hard positivist system that places no such restriction on validity. Both officials provide the same service: supposedly each directive sums up and hence justifiably excludes C-J. The citizen in the Soft system has to consider A & B when deciding whether or not the directive is valid, but, having done that, need not consider C-J; the citizen in the Hard system can take validity for granted, but must still consider A & B before deciding whether the valid directive is nevertheless *outweighed*.

Admittedly, the citizen in the Soft system must take that extra step; in that sense, his authority does "less" for him. But she is still serving as an authority, and in fact, the Soft criteria of validity may be part of what justifies the claim to authority to begin with (e.g., it is only because of this A&B test that we can trust the official to not abuse her power and hence provide us the C-J-excluding service).

Certainly, when the directive is tested in the courts, the judge will make her own determination about A & B, and only consider the subject's determination if there are rules about excuses and whatnot. But this is entirely consistent with the directive passing the test of being (potentially) authoritative, because capable of providing the C-J-replacing service, *to the subject* at the moment the subject is seeking guidance.

As for Michael Steven Green's response, I again don't see the difficulty. Certainly Case 2 in that example makes no sense. But this is because the example is a case of *pure epistemic expertise*, and so the validity of the epistemic authority cannot be invalidated on non-expertise grounds. But note the problem with the example is not that the doctor is failing to provide a service through exclusionary reasoning, but merely that this validity condition makes no sense; it does not speak to the *sort* of consideration that could validate a claim of expertise. If he were a witch-doctor, on the other hand ... but we can leave this aside.

More importantly, we can easily imagine some sort of religious law system wherein a doctor's pharmaceutical prescription was only *legally valid* if the doctor was a "honorable man." Perhaps such a rule would be hard to justify, and lack authority--I personally think the system of pharmaceutical licensing in most states is hard to justify as it is--but it involves no conceptual contradiction. If the doctor is honorable, the scrip is legally valid; if not, not; it still excludes dependent medical reasons. The doctor's virtue may have nothing to do with his professional expertise, but that speaks merely to the wisdom of the law, not its conceptual coherence. We can surely *imagine* an argument to the extent that only honorable men can be trusted to dispense medical advice (think of the Bar's ethics requirements). Probably mistaken, sure--but not incoherent. Just because you have to do some work to check for validity doesn't stop the directive from performing a service, although it *might*, as a contingent matter, keep it from *in fact* being authoritative.

Posted by: X. Trapnel | Nov 9, 2007 3:47:20 PM

But the very question on which hard and soft positivists are divided is whether A and B, in your example, really can figure in the criteria of legal validity. Hard positivists say they can't so figure because, ex hypothesi, law-applying officials have no authority regarding the application of A and B. It is irrelevant that they have authority regarding lots of other things (such as C, D ... J).

Posted by: John Gardner | Nov 10, 2007 3:34:02 AM

I agree with John. Of course it is possible for there to be a concept of a valid medical directive where its validity depends upon the satisfaction of non-excluded reasons for action – like the patient’s religious concerns or whether the doctor is honorable. But, as John put it in the legal content, in such a case the authority of the doctor is *effaced* with respect to these other requirements. So a doctor issuing what he believes is a valid medical directive cannot consistently *claim* to be acting as an authority when issuing it, insofar as these requirements are concerned.

Analogously, if one assumes, with Raz, that it is necessary to the law that it claim authority, the law cannot include requirements, like A and B, concerning which the lawmaker plays no authoritative function. It seems to me that X. Trapnel (like many others) simply thinks that it is not necessary to the law that it claim authority.

In any event, I think it would be a good idea to return to the Leiter-Greenberg example. X Trapnel’s is one in which satisfaction of A and B is a condition for the law’s validity. This is certainly not a scenario that Raz failed to envision. It is exactly the scenario he meant to argue against.

On the other hand, Leiter-Greenberg suggested that Raz may not have considered their scenario. With John, I don’t think it is a problem for Raz (assuming that the law necessarily claims authority), but I’d like to hear from Brian or Mark about whether we have understood them correctly.

Posted by: Michael Steven Green | Nov 10, 2007 1:40:35 PM

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