Authority and the practical difference thesis: A Defense of Inclusive Legal Positivism

Legal Theory

Volumn 6, Issue 1, 2000, Pages 45-81

  Waluchow, W J ^a  

^a MCMASTER UNIVERSITY   (Canada)

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EID: 85022450199     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325200061024     Document Type: Article

References (78)

1. See, e.g., John Finnis, The Truth in Legal Positivism, and Robert P. George, Natural Law and Positive Law, both in THE AUTONOMY OF LAW (R. George ed. 1996).
2. See, e.g., Jules Coleman, Authority and Reason, in THE AUTONOMY OF LAW, The Truth in Legal Positivism note 1; and Incorporationism, Conventionality, and the Practical Difference Thesis, 4 LEGAL THEORY 381-425 (1998).
3. H.L.A. Hart, Postscript in THE CONCEPT OF LAW (P. Bullock & J. Raz eds., 1994).
4. Waluchow, INCLUSIVE LEGAL POSITIVISM (1994), hereinafter referred to as ILP. Inclusive positivism, the legal theory, will be referred to as ILP.
5. Scott Shapiro, On Hart's Way Out, 4 LEGAL THEORY 469-507 (1998). Some theorists, Shapiro included, distinguish between legality and legal validity. For reasons of simplicity, and because nothing in my arguments hinges on a distinction between the two, I shall treat the two as equivalent. For similar reasons I shall also treat validity and authority as equivalent.
6. Tim Dare, Wilfrid Waluchow and the Argument from Authority, 17 OXFORD JOURNAL OF LEGAL STUDIES 347-366 (1997).
7. A practical authority is capable of affecting our reasons for action. A theoretical authority, on the other hand, is capable of affecting our reasons for belief. Typically, legal theorists who ascribe authority to law have practical authority in mind. There are exceptions: Heidi Hurd argues that law's authority is theoretical or epistemic, and Larry Alexander defends the thesis that it is partly epistemic. See Hurd, Challenging Authority, 100 YALE LAW JOURNAL 1611-1677 (1991); Larry Alexander, Law and Exclusionary Reasons, 18 PHILOSOPHICAL TOPICS 5-22 (1990).
8. Raz further believes that there is seldom, if ever, an obligation to obey the law based upon the legitimate authority of its directives. The proposition that there is even a prima facie obligation to obey the law has been “refuted by various writers in recent years.” Raz, THE AUTHORITY OF LAW 97 (1979).
9. Joseph Raz, Authority, Law and Morality, 68 THE MONIST 295, 299 (1985).
10. Raz, id. note 10, at 51-2. In further explanation of his position, Raz notes that income tax laws are intended to settle authoritatively “what is the fair contribution of public funds to be borne out of income.” And in order to determine the existence and content of such laws, all one need do is “establish that the enactment took place, and what it says. To do this one needs little more than knowledge of English (including technical legal English), and of the events which took place in Parliament on a few occasions. One need not come to any view on the fair contribution to public funds.” Raz, id. note 11, at 306.
11. As we shall see more fully below, there is an ambiguity in the argument as stated. The class of moral reasons is not identical with the class of dependent moral reasons which an authoritative directive is meant to adjudicate upon and settle. This ambiguity has important implications for the debates between defenders of ILP and ELP respectively.
12. Raz, As we shall see more fully below, there is an ambiguity in the argument as stated. note 11, at 298.
13. I must, of necessity, be brief. For the full response, see ILP, As we shall see more fully below, there is an ambiguity in the argument as stated. note 11 note 4, at 129-141.
14. Ronald Dworkin, LAW'S EMPIRE 429 (1986).
15. Dare, LAW'S EMPIRE note 7, at 350.
16. Ann's case is found in Raz's PRACTICAL REASON AND NORMS 37-8 (1975).
17. Dare, Ann's case is found in Raz's PRACTICAL REASON AND NORMS note 7, at 355.
18. ILP, Ann's case is found in Raz's PRACTICAL REASON AND NORMS note 7 note 4, at 131.
19. Dare, ILP note 7, at 355.
20. See Schauer, Rules and the Rule of Law, 14 HARVARD JOURNAL OF LAW AND PUBLIC POLICY, 645. See also PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE passim (1991).
21. In ILP I argued that rules, principles and decisions can vary in what I called their “institutional force” and that the institutional force of a precedent can vary from one court to another. Much the same point could be made by saying, along with Schauer, that judges are faced with prior rulings whose justificatory presumption can vary from one decisionmaking context to another. On the differing institutional forces of law, see ILP, ch. 3.
22. Schauer, Rules and the Rule of Law, ILP I argued that rules, principles and decisions can vary in what I called their “institutional force” and that the institutional force of a precedent can vary from one court to another. note 34, 675. Schauer adds in a footnote: “I am extraordinarily dissatisfied with the latter term, but have yet to come up with anything better.” Neither have I.
23. See Constitution Act, 1982, Part 1: Canadian Charter of Rights and Freedoms, s.1. Regina v. Oakes, [1986] 1 SCR 103.
24. For discussion of the Charter and the way in which it incorporates appeal to a limited range of dependent moral reasons, see ILP, Constitution Act note 4, at chapter 5.
25. The Practice Statement, 26 June 1966, cited in R. Cross, PRECEDENT IN ENGLISH LAW 109 (3rd ed. 1977).
26. ALLER, 996, at 1000. For further discussion of cases in which earlier decisions of the House are not treated as exclusionary but rather as enjoying a heavy justificatory presumption in their favour, see ILP, ch. 8, especially pp. 258-63.
27. One must be careful at this point. An Exclusive Positivist may not wish to deny that provisions like the “due process” clause of the American Constitution, or the “equality” section of the Canadian Charter, impose substantive moral constraints on the legal validity, and hence authority, of subordinate directives like statutes or judicial rulings. He also need not deny that the interpretation and application of these constraints require some measure of moral/political argument. In determining, for example, whether a suspect Act of Congress violates due process of law, Courts may be forced to consider the extent to which the Act violates justice or fairness. But the Exclusive Positivist will have a particular explanation of the moral argument in which the Court is engaged in such a case. To the extent that it considers what justice or fairness, in themselves, require as a condition of validity, the Court will be said to have stepped beyond the application of law. In asking whether the Act is invalid because it violates justice or fairness, the Court will be viewed as asking a moral question-one licensed by law, but a moral question nonetheless. And if the Act is struck down, this is because of its conflict with a standard-e.g., justice-which lies outside the legal system. In ILP I discuss in some detail this particular account of challenges to the legal validity and authority of subordinate directives, concluding that it provides a distorted picture of constitutional adjudication under bills and charters of rights. See ILP, For further discussion of cases in which earlier decisions of the House are not treated as exclusionary but rather as enjoying a heavy justificatory presumption in their favour note 4, at 155-165.
28. Larry Alexander, One must be careful at this point. note 9, at 10.
29. In INDIVIDUAL CONDUCT AND SOCIAL NORMS 66 (1975), Sartorius writes: “What I shall call ‘the reflection principle’… embodies the following claim: Where an individual has correctly decided that he ought to do X, any higher-order judgment about his decision to do X or his actual act of doing it ought to license or approve of, rather than disapprove of or penalize, the decision and/or the act itself.” Alexander argues in his Pursuing the Good-Indirectly, 95 ETHICS 323-5 (1985), that the Reflection Principle should be rejected. As Alexander notes in Law and Exclusionary Reasons, One must be careful at this point. note 9 note 9, at 11, his position also requires rejection of the “Publicity Principle” which “rejects the legitimacy of any moral principle that cannot be publicly advocated without undermining itself.”
30. Sartorius, INDIVIDUAL CONDUCT AND SOCIAL NORMS note 45, at 57.
31. Soper, A THEORY OF LAW 77 (1984).
32. Alexander, A THEORY OF LAW note 9, at 17.
33. Alexander nicely summarizes the three basic problems for which exclusionary directives can often serve as a solution: “First, there is the problem of frequent moral error. Many people cannot weigh first-order reasons competently. Second, there is the problem of predictability/ coordination. It is important that people's weighing of first-order reasons be relatively predictable. Third, even when people can weigh first-order reasons correctly and can predict others’ behavior, they frequently find themselves in prisoner's dilemmas…” Alexander, A THEORY OF LAW note 9 note 9, at 6.
34. For a more thorough discussion of these points, see ILP, passim, especially pp. 95-8. For an extremely valuable, though I believe ultimately unpersuasive, account of the reasons in favor of fully exclusionary legal directives, see Tom Campbell, THE LEGAL THEORY OF ETHICAL POSITIVISM passim (1996).
35. Alexander, For purposes of argument I am assuming, as most discussions do, that the society the authority of whose legal directives is in question is a democratic one. note 9, at 10.
36. Once again one must be very careful here. There is nothing in Raz's account of legal authority which prohibits challenges to legal validity and authority based on moral principles enshrined in a constitutional document. But as noted above (note 43), Raz views such appeals as steps beyond the application of law, a view which, I have argued, distorts our understanding of them. See ILP, For purposes of argument I am assuming, as most discussions do, that the society the authority of whose legal directives is in question is a democratic one. note 9 note 4, at 155-65.
37. Dare, Once again one must be very careful here. note 7, at 357, quoting ILP, 132.
38. ILP, 139, quoting Raz, Authority, Law and Morality, Once again one must be very careful here. note 7 note 11, 304.
39. Dare, ILP note 7, at 358.
40. ILP, ILP note 7 note 4, at 132.
41. Dare, ILP note 7, at 358.
42. Andrews v. Law Society of British Columbia [1986] 4 WWR 242 (BCCA). The decision in the BC court was later upheld by the Supreme Court of Canada in Law Society of BC v. Andrews [1989] 56 DLR (4th) 1.
43. ILP, Andrews v. Law Society of British Columbia [1986] 4 WWR 242 (BCCA). note 4, at 139.
44. Dare, ILP note 7, at 361-2.
45. Raz's claim, it should again be stressed, is not only that the authority of a legal directive requires that it be identifiable and understandable independently of the dependent moral reasons which it adjudicates upon and settles. It also requires that this be possible independently of any and all moral reasons period. This claim is the defining element of ELP, one which Raz's analysis of authority is meant to support. See text at ILP note 7 note 12, where Raz says that an authoritative legal directive must be identifiable and understandable independently of standards involving moral argument. Raz requires that the identity and content of valid legal directives turn on no moral reasons whatsoever. My reply is that the authority argument, and its constituent arbitrator analogy, establish at best that they cannot turn on dependent moral reasons, and issues about these particular reasons which are in dispute.
46. Dare, Raz's claim, it should again be stressed, is not only that the authority of a legal directive requires that it be identifiable and understandable independently of the dependent moral reasons which it adjudicates upon and settles. note 7, at 364.
47. Dare appears not to be among those who believe that all moral values are wholly indeterminate. See Dare, Again, according to the most plausible account consistent with ELP, this occurs whenever a court strikes down a directive because it conflicts with a (legally recognized) moral value or principle. note 7, at 362-4.
48. Brian Leiter, Realism, Hard Positivism, and Conceptual Analysis, 4 LEGAL THEORY 533-47 (1998).
49. Stephen Perry, Judicial Obligation, Precedent and the Common Law, 7 OXFORD JOURNAL OF LEGAL STUDIES 223 (1987).
50. ILP, Id. note 4, at 138.
51. ILP, Id. note 4, at 137.
52. Leiter, ILP note 70, at 544.
53. On Perry's account, the weights of the reasons that compete against the precedent are affected by the second-order reason the precedent provides. On Schauer's account this is not so. Rather the precedent has a presumption in its favor, which means that the competing reasons (whose weights are not affected by the precedent), must be particularly strong before they can defeat the precedent. The two accounts may in fact be equivalent if we conceive of weight as a relative property. In any case, I now prefer Schauer's account over Perry's. But the justification of this preference is a matter best left to another time. My reply to Leiter's objection does not depend on which of these two accounts is more acceptable.
54. Leiter, On Perry's account, the weights of the reasons that compete against the precedent are affected by the second-order reason the precedent provides. note 70, at 541.
55. See The Many Faces of Legal Positivism, 48 UNIVERSITY OF TORONTO LAW JOURNAL 387, 425-30 (1998).
56. ILP, The Many Faces of Legal Positivism note 4, 139. For a similar point, see Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis, The Many Faces of Legal Positivism note 2, at 541.
57. Leiter, ILP note 70, at 541.
58. Raz, Leiter note 11, at 304.
59. Coleman, Incorporationism, Conventionality and the Practical Difference Thesis, Leiter note 11 note 2, 383.
60. Shapiro, Coleman note 5, at 491.
61. Although he sometimes refers to rules which “regulate conduct,” Shapiro focuses on duty or obligation imposing rules. In other words, although his analysis is, I believe, intended to cover both primary and secondary rules, his arguments focus primarily on primary rules.
62. According to Shapiro, Hart's internal point of view is best explained in terms of motivational guidance. Whenever one takes the internal point of view towards a rule, one is motivated by the rule to engage in the conduct it prescribes. Hart argued that only judges need take the internal point of view. Since Shapiro is interested in challenging Hart's commitment to ILP, he assumes that only judges need to be motivationally guided by the law if a legal system is to exist. Like Hart, however, Shapiro asserts that many citizens, as a matter of fact, find both epistemic and motivational guidance in the law. I will not here consider whether Shapiro's account of the internal point of view is adequate, or whether it provides a plausible account of Hart's intentions.
63. Shapiro, According to Shapiro, Hart's internal point of view is best explained in terms of motivational guidance. note 5, at 494-5.
64. Near the end of his article (p. 506), Shapiro follows Raz in distinguishing between legality and legal validity, suggesting that not all standards that are legally valid within a legal system, e.g., the laws of foreign jurisdictions, are laws of that system. I will continue to treat the relevant questions of validity as concerning only those standards which are part of the system. Accordingly, I will continue to treat ‘legality’ and ‘legal validity’ as equivalent.
65. Shapiro, Near the end of his article note 5, at 500, 501.
66. It is here that Shapiro utilizes the distinction between legality and legal validity. He suggests, following Raz, that a better way to answer Dworkin is to argue that legally binding moral principles which lack pedigree are legally valid even though they lack legality, i.e., even though they are not legal principles. For my response to this particular construal of legally binding moral principles, see ILP, chapter 5.
67. Shapiro, It is here that Shapiro utilizes the distinction between legality and legal validity. note 5, 496.
68. Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889).
69. Shapiro, Riggs v. Palmer note 5, 496.
70. Shapiro, Id. note 5, at 496.
71. Coleman makes a similar point in his reply to Shapiro. See Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis, Id. note 2, at 423-4.
72. Shapiro, Coleman makes a similar point in his reply to Shapiro. note 5, at 496.
73. The thesis that the law has limits was defended by Joseph Raz in Legal Principles and the Limits of the Law, 81 YALE LAW JOURNAL 823 (1972). The limited domain thesis is defended by Gerald Postema in Law's Autonomy and Public Practical Reason, in THE AUTONOMY OF LAW (R. George ed. 1996).
74. Shapiro, The thesis that the law has limits was defended by Joseph Raz in Legal Principles and the Limits of the Law note 5, at 501.
75. Soper, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, 75 MICHIGAN LAW REVIEW 512 (1977)
76. ILP, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute note 4, at 185.
77. For an attempt to show that the principles cited in Dworkin's two pivotal cases, Riggs v. Palmer and Henningsen v. Bloomfield Motors, Inc., each had an acceptable pedigree, see my ADJUDICATION AND DISCRETION (1980).
78. See, e.g., Neil MacCormick, LEGAL REASONING AND LEGAL THEORY (1978).