Essay on Joseph Raz’s Legal Theory (for University of London Jurisprudence Module)
Jurisprudence Lecture Plus – Raz
TRANSCRIPT
This lecture will look at the work of Joseph Raz, who is very well-known as a hard positivist legal theorist, and his work over the years has spanned the critical questions of law and legal theory, particularly the question of authority, the rule of law, and in order to understand his work, which is expressed in a collection of 11 books, which is either written or edited, is important to place his ideas within the context of his overall philosophy. Joseph Raz was born in Palestine in 1939. He is still a professor with a joint appointment at King’s College, London, and Columbia University in New York. He was for a long time Professor of the Philosophy of Law at Oxford, and before that, he was a lecturer both in the Law and Philosophy departments of the Hebrew University of Jerusalem. He is, of course, also very well-known for his association with HLA Hart, whose work he was very taken with, and of course it was Hart who was to become his PhD supervisor when he went to Oxford. His work has to be seen, as I said, within the context of his overall outlook upon society. He is well-known for his adherence to a version of liberalism called perfectionist liberalism, in which he, in particular, has popularised and emphasises the importance of two things: one, the autonomy of the individual in society, and the essential requirement that there is a moral pluralism within all societies. In other words, the autonomous individual must be able to choose their moral outlook. Perfectionist liberalism is also concerned with the promoting of a particular view of the state. The state is seen as enabling the citizen to live the good life. The state is, at the one hand, enabling to give the citizen that capacity, but at the same time, and Raz is very clear on this, the state must on no circumstances become a state which patronises the individual. It must not become a substitute for the individual. It must enable the individual to act to choose the good life. The state must, therefore, not be seen as dominant or paternalist, in one sense. It mustn’t promote– it can promote the well-being of the citizens, but it has to do so in such a way as to empower the individual citizen to act in a way in which their interests in order to promote the good life.
This context is very important because when we come to the most obvious theory which he has on the question of authority, we see, of course, we have to take into account the way in which he understands the relationship between the individual and the authority. If society is composed of empowered autonomous individuals, the question arises, why would those empowered autonomous individuals obey an authority? What reasons would they have, if they are already acting according to the lights to accept the decisions of others? He looks at the two paradoxes that are associated with a society accepting authority.
The question that we have to look at is two-fold. First of all, is the question of the individual expressing reason? What are the reasons that you would accept an authority? Why would you accept an authority over you? Is it, in fact, irrational for an empowered individual within this liberal society and state to accept an authority? What is the reason that you do that? Because if you’re already acting in a way in which you would assume will create the better life for you and for your fellows, why would you accept someone telling you to do something? That, of course, looks like a paradox, that if you have the empowered individual, why would you accept an authority? In what sense do you accept an authority? Of course, the state and the legal system is a very important authority which requires us, as individuals, as citizens, to act in a particular way, which philosophers, within this area, tend to talk about state and the laws having practical authority i.e, they have the ability to coerce you to accept the way in which, they think, order should be conducted, and the way in which not only order should be conducted, but that you should conduct yourself within that order. The first paradox is the problem of reason, why would an individual accept this if they are already within this perfectionist liberal ideal autonomous? Secondly, doesn’t the whole idea of autonomy be undermined by the fact that you have to accept an authority? You have two paradoxes. We seem to accept authorities. Most people seem to abide by the law, the commands of the state, the requirements of the state, but why do we do this if we are these autonomous individuals with the ability to think and reason? It is at this point that Raz, also drawing on this philosophical tradition, makes a distinction between the notion of practical authority and theoretical authorities. One of the ways in which he tries to get us to understand why you might accept an authority, is by looking at what he calls theoretical authorities. Theoretical authority which he takes is that of a doctor, in particular, an individual goes to a doctor, has some symptoms, relies upon the doctor to diagnose the Maybe a Raz suggests that when we go to a doctor, and we are accepting that he has this theoretical authority, his knowledge, training or her training, is profound. We invest in that, and therefore we follow the advice despite the fact that we are autonomous individuals capable of or able toreason, but we are not experts in the field of medicine, and therefore, it is suggested that it would be irrational if we did not accept the advice the doctor gives us. This, of course, is different in relationship to practical authority in which there is a consequence, of course, of not accepting the authority. It’s not just that we accept the authority, but there is a coercive element in it. If we don’t accept the doctor’s advice, we might suffer as a consequence physically, but we will not be compelled to follow the advice. That obviously is not open when we come to the question of the state, and the legal system, and the rule of law. He wants to ask how we can see this example of following authority in the doctor, why do we follow the authority of the doctor He suggests for all sorts of reasons.
