Abstract
It is common to encounter the criticism that Joseph Raz’s service conception of authority is flawed because it appears to justify too much. This essay examines the extent to which the service conception accommodates this critique. Two variants of this critical strategy are considered. The first, exemplified by Kenneth Einar Himma, alleges that the service conception fails to conceptualize substantive limits on the legitimate exercise of authority. This variant fails; Raz has elucidated substantive limits on jurisdiction within the service conception of authority, albeit reluctantly and equivocally. The second, exemplified by Scott Hershovitz, alleges that the service conception fails to conceptualize procedural limits on the legitimate exercise of authority. He objects that the normal justification thesis fails to deny legitimacy to rational and expert dictators. This argument is more potent, but its force is concealed when it is aimed at the normal justification thesis rather than the quite separate jurisdictional limits of Raz’s theory. Clarifying those jurisdictional aspects of the service conception shows why the first argument fails and exposes the real strength of the second. Both variants have important consequences for our understanding of the service conception.
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Notes
Such an argument would presumably begin by tackling the issue (which is not tackled here) of what, exactly, is meant by ‘normal’.
This might lead one to expect that the main source of opposition to Raz’s account of authority would come from those who argue that it doesn’t legitimize enough rather than those, considered in this essay, who allege that it legitimizes too much.
For this reason, I think Timothy Endicott is wrong to agree with the ‘wise electrician’ who reasons that ‘he does not need the service that the law provides’. He might not need its electrical expertise, but he still needs its coordinative assistance. See Endicott (2005, pp. 244–245).
It also seems vulnerable to many far-from-rudimentary objections: it is based on an objectivist account of morality and reason; it treats authority as something to be justified only instrumentally; it is based on Raz’s version of practical reason, which treats authoritative directives as ‘exclusionary reasons’. I will not deal with these deeper issues here.
For a discussion of the normal justification thesis as a jurisdictional principle, see Endicott (2007).
E.g. Himma (discussed below) and Sadurski (2006) both use ‘Authority, Law and Morality’ as their primary reference for the service conception.
The ‘moral question’ referred to is this: ‘how can it ever be that one has a duty to subject one’s will and judgment to that of another?’ (Raz 2006, p. 1012).
Cf. Raz’s similar interpretation of the claims of the anarchist, Raz (1986, p. 57).
‘The normal justification thesis’ he argues (again substituting that thesis for the service conception as a whole) ‘is a substantive theory of legitimacy’ Hershovitz (2003, p. 212).
He later confirms his stance that ‘the most important tests for the legitimacy of political authorities will be procedural or, at the very least, hybrids of substance and procedure’ (Hershovitz 2003, p. 218).
For an introductory overview to that topic, see Christiano (2008).
In suggestive remarks at a conference held in his honour in Manchester in May 2008, Raz pointed towards a deeper analysis of this feature of the service conception. Legitimate authorities don’t just create duties to obey; they also possess a correlative right to rule. Given that rights protect the interests of their holders this raises the question of whose interests are at stake in the justification of authority and what interests they are. Raz suggested that the authority, in acting as the servant of its subjects also serves their interests, rather like a company’s rights protect the interests of its shareholders. The scope of these interests would, I think, determine the extent to which we could really call what an authority provides a ‘service’.
References
Besson, Samantha. 2005. Democracy, law and authority. Journal of Moral Philosophy 2: 89–99.
Christiano, Tom. 2008. Democracy. In Stanford encyclopedia of philosophy (Fall 2008 Edition), ed. by E. N. Zalta, http://plato.stanford.edu/archives/fall2008/entries/democracy/. Accessed 12 Feb 2012.
Endicott, Timothy. 2005. The subsidiarity of law and the obligation to obey. American Journal of Jurisprudence 50: 233–248.
Endicott, Timothy. 2007. Interpretation, jurisdiction, and the authority of law. American Philosophical Association Newsletter 6: 14–19.
Hershovitz, Scott. 2003. Legitimacy, democracy and Razian authority. Legal Theory 9: 201–220.
Himma, Kenneth Einar. 2007. Just ‘cause you’re smarter than me doesn’t give you a right to tell me what to do: legitimate authority and the normal justification thesis. Oxford Journal of Legal Studies 27: 121–150.
Raz, Joseph. 1985. Authority and justification. Philosophy and Public Affairs 14: 3–29.
Raz, Joseph. 1986. The morality of freedom. Oxford: Oxford University Press.
Raz, Joseph. 1989. Facing up: a reply. Southern California Law Review 62: 1153–1235.
Raz, Joseph. 1990. Introduction. In Authority, ed. Joseph Raz, 1–19. Oxford: Blackwell.
Raz, Joseph. 1994. Ethics in the public domain. Oxford: Oxford University Press.
Raz, Joseph. 1996. Liberty and trust. In Natural law, liberalism and morality, ed. R.P. George, 113–130. Oxford: Oxford University Press.
Raz, Joseph. 2006. The problem of authority: revisiting the service conception. Minnesota Law Review 90: 1003–1044.
Sadurski, Wojciech. 2006. Law’s legitimacy and democracy-plus. Oxford Journal of Legal Studies 26: 377–409.
Waldron, Jeremy. 1999. Law and disagreement. Oxford: Clarendon.
Wolff, Robert Paul. 1970. In defence of anarchism. New York: Harper and Row.
Acknowledgments
I am grateful to Mike Wilkinson and two anonymous referees for their helpful advice. I also received useful feedback after presenting earlier versions of this paper at the Jurisprudence Discussion Group at the University of Oxford and the UK IVR Conference.
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Tucker, A. The Limits of Razian Authority. Res Publica 18, 225–240 (2012). https://doi.org/10.1007/s11158-012-9180-8
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DOI: https://doi.org/10.1007/s11158-012-9180-8