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Shiner on ‘Detached Legal Statements’: A Defense of Raz
Published online by Cambridge University Press: 09 June 2015
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In his recently published book Norm and Nature, Roger Shiner contends that legal positivists cannot account adequately for the internal point of view which characterizes legal agents’ attitude of commitment to legal norms. Shiner expects that an adequate legal theory will “reproduce the way in which law functions in the lives of those who have the internal point of view to law” (NN, 137). He calls this the “reproduction demand.” In his analysis of Joseph Raz he claims that such “sophisticated positivists” cannot maintain a theory of legal statements which are “detached” from moral commitment to the legal norms they refer to. The failure of the theory of detached legal statements leaves positivists without an adequate account of the necessarily personal aspect of the internal point of view in legal systems—a point of view which according to Shiner requires normative commitment to the justification of the legal norm.
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- Copyright © Canadian Journal of Law and Jurisprudence 1995
References
I am indebted to Wil Waluchow, Joseph Raz, and an anonymous referee for the journal for their helpful comments. I am also grateful to Roger Shiner for his commentary and subsequent discussion at this paper’s presentation at the Calgary meeting of the Canadian Philosophical Association in June, 1994.
1. Shiner, Roger Norm and Nature (Oxford: Clarendon Press, 1992) (hereinafter "NN").Google Scholar
2. Notably, Shiner seems to take Raz’s supposed failingsas being weaknesses of positivism generally. It is not clear that this sort of generalization is justified, but I will grant this much to Shiner for the purposes of this discussion.
3. Raz, Joseph The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979)(hereinafter “AL”).CrossRefGoogle Scholar
4. This division might also be expressed in three parts: it is one thing to understand ordinary use of normative terms or to be sensitive to the fact that a certain action raises moral concerns, and something slightly different to make a detached statement reporting the content of a law without endorsing its normative force, and yet another thing to make a committed legal statement which reports the content of a law and endorses its normative force. Within the context of the two part distinction I use here, a detached statement relies on the speaker’s understanding of the ordinary normative use of the terms required to explain the appropriate application of the statement.
5. Supra note 1 at 155. Shiner seems to recognize that Raz accepts that statements from a point of view may involve normative commitments, but he insists that this point of view still involves less than “full understanding.” I examine this notion of full understanding further below.
6. I use ‘legal statement’ here to indicate an expression of a particular law of a legal system, grounded by an authoritative source. As Raz puts it, supra note 3 at 63:
A [legal] statement is not a statement of law in the abstract but a statement of English Law or of German Law, etc. So the operators should be ‘It is English law that—’ etc., but reference to the particular system can be omitted in the present discussion so long as it is remembered that all legal statements are statements of different particular legal systems.
Legal statements, like deontic statements generally, are logically stratified. Statements of legal reasons for action form the most elementary stratum. Permissions, duties, and powers are explained in terms of reasons; rights are explained in terms of duties, permissions and powers, legal transactions in terms of rights and powers, etc.
Thus when I say that a legal statement functions as a legal reason, I mean, following Raz, that a legal statement enunciates a particular law and includes in its utterance the idea that itprovides a reason for action. See also supra note 3 at 65 first paragraph of 2.3 Sources as Reasons.
7. See generally: Raz, Joseph “Authority, Law and Morality” (1985), 68 The Monist 296 (hereinafter “ALM”).Google Scholar
8. Raz, Joseph “Authority and Justification” (1985) 14 Phil. & Publ. Affairs 14 (hereinafter “AJ”).Google Scholar
9. I acknowledge that I have not included discussion of Raz’s description of cancelling conditions, conclusive reasons, and permissions and conclusivepermissions. All of these conceptual tools are relevant to his project, but for the present discussion I need only sketch minimally his over all theory of authority, justification and law in order to bring its salient points against Shiner’s attack.