Legitimacy, democracy, and razian authority

Legal Theory

Volumn 9, Issue 3, 2003, Pages 201-220

  Hershovitz, Scott ^a  

^a BALLIOL COLLEGE   (United Kingdom)

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[No Author keywords available]

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EID: 85007377735     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325203000090     Document Type: Article

References (35)

1. Joseph Raz, PRACTICAL REASONS AND NORMS 178 (2nd ed., 1999).
2. Raz offers a similar example. See id. at 178-179. Raz argues that cases like this are special and that in general reasons are reasons for conformity and not compliance. Id. at 179-182.
3. For Raz's response to objections to his account of exclusionary reasons, see id. at 178-199.
4. J. Raz, THE MORALITY OF FREEDOM 35 (1988).
5. For further discussion of the difference, see J. Raz, THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 15-16, 23 (1997).
6. Some contend that the difference between ordering and requesting is not one of kind, as Raz asserts, but rather is a difference of weight. Orders are simply weightier reasons than requests, on this view, and though they may be intended to outweigh other considerations, they are not intended to exclude them. Raz points out that valid requests do not necessarily carry less weight than valid orders. There are weighty requests and orders that exclude little. Raz, For further discussion of the difference note 9, at 23.
7. Raz, Id. at 19. We can also change protected reasons for ourselves through promising. note 7, at 46.
8. See id. at 46. Raz presents the preemption thesis as a consequence of the normal justification thesis and the dependence thesis, which will be discussed below. Raz argues that if the dependence thesis were true of legitimate authority and the preemption thesis false, certain reasons would be double counted. See also J. Raz, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 215 (1995). I have changed the order of presentation for ease of exposition. I do not think that it affects the substance of Raz's views to do so. Raz's analysis is an interlocking whole whose parts mutually reinforce each other. See Raz, Id. at 19. We can also change protected reasons for ourselves through promising. note 7 note 7, at 55.
9. Raz, Raz presents the preemption thesis as a consequence of the normal justification thesis and the dependence thesis, which will be discussed below. note 7, at 42.
10. Raz sees the question of the legitimacy of political authority as part of a “wider issue of the justification of government.” Raz, Raz presents the preemption thesis as a consequence of the normal justification thesis and the dependence thesis, which will be discussed below. note 7 note 15, at 356. Justifying a government is the wider issue, in Raz's view, because governments do things that are not properly construed as exercises of authority; for example, governments own property, participate in markets, and employ people. Raz believes governmental action stands in need of justification regardless of whether it involves an exercise of authority. The legitimacy of authority presents special problems, however, because it involves an obligation to obey. Id.
11. See Raz, Raz sees the question of the legitimacy of political authority as part of a “wider issue of the justification of government. note 7, at 53-56, 75, for discussions of other ways an authority might be justified.
12. Raz, Raz sees the question of the legitimacy of political authority as part of a “wider issue of the justification of government. note 7 note 7, at 47.
13. The dependence thesis is often taken to lead to a corollary, the no-difference thesis, according to which “[t]he exercise of authority should make no difference to what its subjects ought to do.” Raz, Raz sees the question of the legitimacy of political authority as part of a “wider issue of the justification of government. note 7 note 7 note 7, at 48. The inference from the dependence thesis to the no-difference thesis is invalid. For discussion, see id. at 30-31, 48-49.
14. Roberto Mangabeira Unger, WHAT SHOULD LEGAL ANALYSIS BECOME? 72-73, 115 (1996); Jeremy Waldron, LAW AND DISAGREEMENT 8-9 (2001).
15. J. Waldron, THE DIGNITY OF LEGISLATION (1999).
16. As Waldron notes, Raz has suggested that a legal system need not have a legislature. Waldron, THE DIGNITY OF LEGISLATION note 25, at 34; Raz, THE DIGNITY OF LEGISLATION note 2, at 139-141. Waldron discusses general jurisprudence and what he considers its misguided aim for institutional neutrality at Waldron, THE DIGNITY OF LEGISLATION note 25, at 45-48.
17. Hart assailed Austin's command theory because it neglects the normativity of law. He also showed that Austin's theory lacks the nuance necessary to explain law. Law does more than issue commands; it also grants permission, creates powers, and regulates its own development and application. H.L.A. Hart, THE CONCEPT OF LAW (2d ed. 1994).
18. Cf. Waldron, Hart assailed Austin's command theory because it neglects the normativity of law. note 25, at 100.
19. Raz, Hart assailed Austin's command theory because it neglects the normativity of law. note 25 note 15, at 356.
20. An important difference between democratic communities of differing size is the character of participation opportunities. Les Green somewhat skeptically describes democratic citizens as “law-takers just as individual consumers in a competitive market are price-takers.” Les Green, Law, Legitimacy and Consent, 62 S. CAL. L. REV. 795, 802 (1989). I have misgivings about this description, but as the size of a community grows, it probably becomes more apt. However, even in gigantic democracies, more robust (and effective) forms of participation than law-taking at the ballot box are frequently available (e.g., protest, petition, and lobbying). The legitimacy of a democratic political authority will depend in part on the character of the participation opportunities it affords.
21. For an illuminating discussion of the value of open government and countervailing concerns, see id. at 95-127.
22. I do not intend to invoke what Raz calls the “least persuasive argument for democracy,” which is, according to him, “one which regards it as the nearest we can get to selfdetermination.” J. Raz, Disagreement in Politics, 43 AM. J. JURISPRUDENCE 25, 45 (1998). The value of people participating in decisions that have an important impact on their lives can be grounded without any suggestion that self-determination, whatever that might be, is required or desirable.
23. Gutmann and Thompson, I do not intend to invoke what Raz calls the “least persuasive argument for democracy,” note 34, at 18.
24. Robert Dahl, DEMOCRACY AND ITS CRITICS 164 (1989).
25. I have in mind here phenomena like adaptive preference formation, in which people define their goals by what they believe is reasonably available to them, as well as much of the research on the importance of what sociologists and historians call “social capital.” On adaptive preference formation, see Jon Elster, SOUR GRAPES: STUDIES IN THE SUBVERSION OF RATIONALITY (1983).
26. John Rawls, A THEORY OF JUSTICE 234 (1971).
27. Raz, Id. note 15, at 366.
28. See Raz, Id. note 15 note 9, at 239; Green, Id. note 15 note 32, at 808.
29. Raz, Id. note 15 note 9 note 15, at 355-369. Raz does allow that consent can have some impact on legitimacy. He believes that it can strengthen obligations to obey and that it can express a citizen's trust for his government. Id. Raz also thinks that there are limited cases in which consent can establish authority-cases where it is an “optional good” for people to decide the matters in question themselves. The authority of the modern state does not fall into this category. See J. Raz, Facing Up: A Reply, 62 S. CAL. L. REV. 1153, 1183 (1989).
30. See, e.g., Dahl, Id. note 15 note 9 note 15 note 38; Gutmann and Thompson, Id. note 15 note 9 note 15 note 34.
31. Waldron, Id. note 15 note 9 note 15 note 38; note 25, at 85-118.
32. Waldron, Id. note 15 note 9 note 15 note 38; note 25 note 25, at 102.
33. As Gutmann and Thompson put it: “The moral authority of collective judgments about policy depends in part on the moral quality of the process by which citizens collectively reach those judgments.” Gutmann and Thompson, Id. note 34, at 4.
34. Raz, As Gutmann and Thompson put it: “The moral authority of collective judgments about policy depends in part on the moral quality of the process by which citizens collectively reach those judgments. note 15, at 117. Raz also says that “how we decide what to do is, sometimes, of independent value.” Id. at 366 n.7.
35. Raz, As Gutmann and Thompson put it: “The moral authority of collective judgments about policy depends in part on the moral quality of the process by which citizens collectively reach those judgments. note 15 note 7, at 57.