Abstract
Legal obligation, the focal notion of this volume, is widely thought to be bound up with the idea of authority; and it is also linked (in ways that depend on one’s conception of legal obligation) with the justifiability of authority, which will be the primary focus of this chapter. In examining the justifiability of authority, particular attention will be given to Robert Wolff’s philosophical anarchist argument and a prominent response in the form of Joseph Raz’s ‘service conception of authority’. Following an introduction, I provide a brief exposition of Wolff’s claim that authority is incompatible with moral autonomy (Sect. 2). After presenting the Razian response to Wolff (Sect. 3), I consider what implications follow from Raz’s service conception of authority assuming it is correct (Sect. 4). I argue that, even if the service conception successfully meets the anarchist challenge, it does so not by entirely dissolving the tension between authority and autonomy, but through a balancing act whereby one aspect of our autonomy is comprised by another aspect of our autonomy. Finally, I consider the service conception of authority itself and point out certain vulnerabilities thereof (Sect. 5).
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
It is not my aim here to consider all the existing or possible responses to Wolff. Thus, for example, I will not consider another notable type of response, which denies the supposed correlativity between authority and a duty to obey. Along this line, see Ladenson (1980, pp. 134–159); Sartorius (1981, pp. 3–17); Reiman (1972, pp. xxv, 18, 23, 42–44). Cf. Edmundson (1998).
- 2.
I have added ‘morally’ to distinguish the authority referred to from authority justified in a sense that is merely-legal-but-not-moral (if there is such a sense).
- 3.
I have again added ‘morally’ to indicate that I am not referring to legitimacy in the sense of social perception. The relevant sense of legitimacy is grounded in actual qualities (e.g., substantive, procedural, or structural) of the directive-issuer.
- 4.
This, of course, does not deny that the content of some laws may (or may not) coincide with what we are anyway under a moral duty to do regardless of the law, which is the case, for example, when the law requires us to avoid mala in se conduct such as murder, theft, or physical assault.
- 5.
Recall that, notwithstanding this generic label, the reference here is to an obligation to obey the law, not to all obligations.
- 6.
On the distinction between a priori anarchism and a posteriori anarchism, see Simmons (2001, Chap. 6).
- 7.
- 8.
Relatedly, see Gardner (2012, pp. 139–144), where he elucidates the difference between a claim to moral authority and a claim to moral correctness or to justice.
- 9.
Such qualities may have the tendency to result in substantively just legal requirements and/or may embody justice.
- 10.
- 11.
Greenberg (2014).
- 12.
- 13.
H.L.A. Hart can be read as a proponent of this view (see Hart 1982, pp. 127–128).
- 14.
- 15.
And, according to this line of thought, whenever the system asserts a legal obligation it (impliedly) reasserts its claim to justified authority.
- 16.
In Sect. 1 above, I used the phrase ‘justified authority’ with the same meaning.
- 17.
The reader may notice that Wolff argues here in terms consonant with one of the two alternative views of directionality that I mentioned in Sect. 1 above. But this does not change the point, made in Sect. 1, that the no-obligation-without-authority supposition is compatible with an alternative view of directionality. Moreover, I believe Wolff’s argument could be retained with a limited adaptation to the alternative view of directionality.
- 18.
Or simply and only to escape punishment.
- 19.
In its full name, the Patient Protection and Affordable Care Act.
- 20.
In similar vein, Wolff notes that ‘[a]uthority resides in persons; they possess it – if indeed they do at all – by virtue of who they are and not by virtue of what they command’ (Wolff 1970, p. 6); and that ‘[a]n authoritative command must also be distinguished from a persuasive argument’ (ibid.). Cf. Regan (1990); Sevel (2018). See also Shapiro (2002, pp. 382–391).
- 21.
Wolff (1970, p. 18) uses the term ‘complying’ in the same sense.
- 22.
See further Wolff (1973).
- 23.
- 24.
For further analysis of this conflict see, e.g., Iosa (2014).
- 25.
It forms, if you like, a gateway to the moral realm. Thus, for example, it is part of what distinguishes human agents, as bearers of moral responsibility, from, say, an automaton, internet bot, or the like, which, even if capable of bringing about harm, would not be treated as a bearer of moral responsibility.
- 26.
Which is, I take it, what he means when referring to compliance done ‘for reasons of prudence’ (Wolff 1970, p. 9).
- 27.
See also Hurd (1991, p. 1613).
- 28.
The wording ‘reasons that apply to him/her’ in my above formulation is intended to mean reasons other than the very fact that A has issued a directive (a fact that, according to Raz, would itself be a reason if A is a legitimate authority).
- 29.
- 30.
Exclusionary reasons do not operate at the normative level of ordinary reasons and do not compete with them in weight. Rather, in the case of a conflict between an exclusionary reason and an ordinary reason that falls within the exclusionary reason’s scope of application, the exclusionary reason prevails regardless of the ordinary reason’s weight (Raz 1990, pp. 36, 40, 189, and 190; 2009, pp. 22–23).
- 31.
Elsewhere he makes the following comment, which seems to point in a similar direction: ‘[T]he primary value of our general ability to act by our own judgment derives from the concern to conform to reasons, and that concern can be met in a variety of ways’ (Raz 2006, p. 1017). This ‘variety of ways’, as I understand Raz, includes compliance with authority.
- 32.
See further Raz (1989, pp. 1156–1164).
- 33.
Cf. Edmundson’s comment that ‘[a] reason to do one’s duty for duty’s sake exemplifies a positive second-order reason’ (Edmundson 1993, p. 329).
- 34.
‘One recurring kind of reason against accepting the authority of one person or institution is that there is another person or institution with a better claim to be recognized as an authority’ (Raz 1986, p. 57).
- 35.
My above statement takes into account Wolff’s qualification that our duty is to be autonomous to the greatest extent possible. This feasibility rider seems less readily able to accommodate the aforementioned practices (i.e., their extent, role, etc.) in comparison with Raz’s context-sensitive variable evaluation of the intrinsic significance of autonomy.
- 36.
See related discussion in Gur (2018, Chap. 6).
- 37.
Including those whose comparative competence and information render them generally apt to direct the relevant subjects to better conform to reasons in the domain in question.
- 38.
This argument chimes with a point made by Shapiro (2002, p. 409) (though he understands Raz’s second alternative as involving a subject who ‘completely ignores’ an authoritative directive and ‘deliberates in its absence’ [ibid.], whereas Raz may mean here a more inclusive weighing process that takes account of reasons for action that the directive brings into play). To a similar effect, see Durning (2003, pp. 606–607).
- 39.
It has been suggested that the dispositional model is reconcilable with the pre-emption thesis and with the weighing model. I will reply to these suggestions elsewhere and will explain why I disagree with them.
- 40.
For example, Frederick Schauer’s notion of presumptive normative force exercised by rules (Schauer 1991a, pp. 196–206; 1991b, pp. 674–677) and Stephen Perry’s notions of reweighing reasons and epistemically-bounded reasons (Perry 1989, pp. 933–945). On these notions, see Gur (2018, pp. 193–197 in the body text and footnotes).
References
Bertea S (2019) A theory of legal obligation. Cambridge University Press, Cambridge
Dagger R, Lefkowitz D (2021) Political obligation. In: Zalta EN (ed) The Stanford encyclopedia of philosophy. https://plato.stanford.edu/entries/political-obligation/
Durning P (2003) Joseph Raz and the instrumental justification of a duty to obey the law. Law & Philos 22:597–620
Edmundson WA (1993) Rethinking exclusionary reasons: a second edition of Joseph Raz’s Practical Reason and Norms. Law & Philos 12:329–343
Edmundson WA (1998) Three anarchical fallacies: an essay on political authority. Cambridge University Press, Cambridge
Edmundson WA (2004) State of the art: the duty to obey the law. Leg Theory 10:215–259
Finnis JM (2011) Natural law and natural rights, 2nd edn. The Clarendon Press, Oxford
Fuller LL (1969) The morality of law, 2nd edn. Yale University Press, New Haven
Gardner J (2012) Law as a leap of faith. Oxford University Press, Oxford
Greenberg M (2014) The moral impact theory of law. Yale Law J 123:1118–1625
Gur N (2013) Actions, attitudes, and the obligation to obey the law. J Polit Philos 25:326–346
Gur N (2018) Legal directives and practical reasons. Oxford University Press, Oxford
Hart HLA (1982) Essays on Bentham: jurisprudence and political theory. Oxford University Press, Oxford
Hurd HM (1991) Challenging authority. Yale Law J 100:1611–1677
Iosa J (2014) The structure of the conflict between authority and autonomy. Can J Law Jurisprud 27:415–438
Klosko G (2019) Why should we obey the law? Polity Press, Cambridge
Köpcke Tinturé M (2013) Finnis on legal and moral obligation. In: Keown J, George RP (eds) Reason, morality, and law. Oxford University Press, Oxford, pp 379–395
Ladenson R (1980) In defense of a Hobbesian conception of law. Philos Public Aff 9:134–159
Monti E (2022) Could legal obligations possibly be moral obligations? In: Bertea S (ed) Contemporary perspectives on legal obligation. Routledge, Abingdon, pp 133–152
Pavlakos G (2015) The relation between moral and legal obligation: an alternative Kantian reading. In: Pavlakos G, Rodriguez-Blanco V (eds) Reasons and intentions in law and practical agency. Cambridge University Press, Cambridge, pp 228–244
Perry SR (1989) Second-order reasons, uncertainty and legal theory. South Calif Law Rev 62:913–994
Raz J (1986) The morality of freedom. The Clarendon Press, Oxford
Raz J (1989) Facing up: a reply. South Calif Law Rev 62:1153–1235
Raz J (1990) Practical reason and norms, 2nd edn. Princeton University Press, Princeton
Raz J (1995) Ethics in the public domain: essays in the morality of law and politics. Revised paperback edn. The Clarendon Press, Oxford
Raz J (2006) The problem of authority: revisiting the service conception. Minn Law Rev 90:1003–1044
Raz J (2009) The authority of law: essays on law and morality, 2nd edn. Oxford University Press, Oxford
Regan DH (1990) Reasons, authority, and the meaning of ‘obey’: further thoughts on Raz and obedience to law. Can J Law Jurisprud 30:3–28
Reiman JH (1972) In defense of political philosophy. Harper & Row, New York
Sartorius R (1981) Political authority and political obligation. Virginia Law Rev 67:3–17
Schauer F (1991a) Playing by the rules: a philosophical examination of rule-based decision-making in law and in life. The Clarendon Press, Oxford
Schauer F (1991b) Rules and the rule of law. Harv J Law Public Policy 14:645–694
Sevel M (2018) Obeying the law. Leg Theory 24:191–215
Shapiro SJ (2002) Authority. In: Coleman JL, Shapiro SJ (eds) The Oxford handbook of jurisprudence and philosophy of law. Oxford University Press, Oxford, pp 382–439
Simmons JA (2001) Justification and legitimacy. Cambridge University Press, Cambridge
Smith MN (2013) Political obligation and the self. Philos Phenomenol Res 86:347–375
Wodak D (2018) What does ‘legal obligation’ mean? Pacif Philos Q 99:790–816
Wolff RP (1970) In defense of anarchism. Harper & Row, New York
Wolff RP (1973) The autonomy of reason: a commentary on Kant’s Groundwork of the Metaphysics of Morals. Harper & Row, New York
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2024 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
Gur, N. (2024). Reflections on the Justifiability of Authority: Raz vs. Wolff. In: Beyleveld, D., Bertea, S. (eds) Theories of Legal Obligation. Law and Philosophy Library, vol 146. Springer, Cham. https://doi.org/10.1007/978-3-031-54067-7_7
Download citation
DOI: https://doi.org/10.1007/978-3-031-54067-7_7
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-031-54066-0
Online ISBN: 978-3-031-54067-7
eBook Packages: Law and CriminologyLaw and Criminology (R0)