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Reasons, Authority, and the Meaning of “Obey”: Further Thoughts on Raz and Obedience to Law

Published online by Cambridge University Press:  09 June 2015

Donald H. Regan
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Extract

I recently published a long article discussing a variety of topics from Joseph Raz’s The Morality of Freedom. The article was part of a symposium on Raz’s work in the Southern California Law Review . Raz responded to the articles in that symposium, including my own.

From a perspective which surveys the whole range of views on political philosophy, Raz’s view and mine look very similar. Even so, we find many things to disagree about, which neither of us would regard as merely matters of detail. For the most part, we at least share a common understanding of our disagreements. But there is one set of issues we disagree about and where we seem to lack even a common understanding of the disagreement. These are issues about how authoritative directives function as reasons for action, and about whether, when we follow authority in the proper way, we can be said to “obey” it.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 3 , Issue 1 , January 1990 , pp. 3 - 28
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1990

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References

This essay was largely written at the National Humanities Center, with the support of the Andrew W. Mellon Foundation. My thanks to both. I am also grudgingly grateful to Dick Bronaugh, whose helpful comments increased the length of the essay by a third.

1. Donald, H. Regan “Authority and Value: Reflections on Raz’s Morality of Freedom” (1989), 62 Southern California Law Review, 995–1095.Google Scholar

2. Raz, J. The Morality of Freedom, (Oxford: Clarendon Press, 1986).Google Scholar

3. Raz, , “Facing Up: A Reply” (1989), 62 Southern California Law Review, 995–1235.Google Scholar

4. Ibid.. at 1197, n. 91.

5. I introduced this terminology in “Law’s Halo” (1986), 4 Social Philosophy & Policy at 15–30 Google ScholarI referred tothis terminology in “Authority and Value” (1008 n.40,1022 n.65), but I did not use it in “Authority and Value”, which I now regret. In “Authority and Value”, trying to keep as close as possible to Raz’s terminology, I referred instead to “reasons for action in the strict sense” (intrinsic reasons) and “reasons for action in the loose sense” (indicative reasons). As I shall explain later in this essay, I think Raz’s terminology is problematic, and I would have been clearer if I had distanced myself from it more completely. Part of my motive was that I was concentrating in “Authority and Value” on the concept of an “indicator-rule”, which we might think of as a special use we can make of certain unusually reliable indicative reasons. So, an indicator-rule is not just an indicative reason. But the concept of an indicator-rule cannot be properly understood unless we already have the concept of an indicative reason. Since some expansion on the discussion of indicative reasons in “Law’s Halo” was undoubtedly called for, the present essay really should have been written before “Authority and Value”. We often realize these things too late.

6. Having said I shall ignore coordination, I must insert a footnote about it. In his response to me and to Leslie Green, “Law, Legitimacy, and Consent“ (1989), 62 Southern California Law Review, 795 Google Scholarat 804-8, Raz adds something important to the discussion of coordination in his book. (“Facing Up”, supra note 3 at 1187-94) He points out that one is not “in” a coordination problem as game theorists normally understand it unless everyone involved knows the basic situation, and is motivated to coordinate, and knows that others know the situation and that they are motivated to coordinate, and so on. And so there is a sense in which just recognizing a coordination problem is itself a coordination problem. Each would-be coordinator must correctly identify the others, and the identification must be known to be mutual. (For practical purposes in many-person cases the identification may not need to be perfect, but that does not affect the principle.) Raz now suggests that a central aspect of government’s contribution is that it helps us not merely to solve firstorder coordination problems, but also to solve the second-order problem of recognizing the first-order ones. About this, I think he is absolutely right. (I cannot resist saying that although I had not previously noticed this point about the function of government, I had noticed that recognizing a coordination problem is itself a coordination problem at a higher level. The repellent complexity of the “full-dress” decision procedure for cooperative utilitarianism that I presented in Utilitarianism and Co-operation (Oxford: Clarendon Press, 1980) is entirely attributable to the need to solve the higher-order problem.) However, the realization that government helps us to identify coordination problems as well as to solve them, while it complicates a full description of what goes on, does not convert authoritative utterances into intrinsic reasons. Raz virtually admits this when he says that if some coordinative practice government tries to institute does not catch on, then individuals are justified in ignoring it. (“Facing Up”, supra note 3 at 1194)

7. Raz supra note 2 at 29.

8. “Facing Up”, supra note 3 at 1186.

9. For example, Raz, supra note 2 at 29. In one sense, of course, “reasons for belief” is definitely broader than “indicative reasons”, since we may have reasons for belief about facts which have no bearing on action. But if we agree that we are at all times talking in a practical context (as Raz normally is), so that the beliefs we are interested in are beliefs which do have a bearing on action, then the identification suggested in the text is plausible.

10. “Facing Up”, supra note 3 at 1154, n. 2.

11. Ibid.

12. Stephen, Perry, “Second-Order Reasons, Uncertainty and Legal Theory” (1989), 62 Southern California Law Review 913–94, at 919–27.Google Scholar Perry may invite misunderstanding by an occasional comment and by his terminology of “subjective”and “objective” exclusionary reasons. But Perry makes some very astute observations. He is quite right that practical reasoning must sometimes deal in probabilities, and that it is far from obvious precisely how we should describe reasoning from probabilities within the context of the general model (char acterized by respect for the distinction between beliefs-as-explanatory-reasons and facts-as-guiding-reasons) which Perry is as committed to as Raz and I are. Perry also points out a striking difference between the way authoritative directives function as exclusionary reasons and the way promises function as exclusionary reasons (both according to Raz). Authoritative directives have their exclusionary force because they represent certain other reasons; promises do not represent other reasons, but just make certain sorts of reason straightforwardly irrelevant. Perry does well to ask whether reasons whose exclusionary force is so differently grounded are likely to operate exactly the same way in deliberation.

13. Regan, supra note 1 at 1003-13.

14. Ibid., 1003-18.

15. Ibid., 1019-31.

16. For a slightly more expansive presentation of this point, see the Appendix to “Authority and Value” supra note 1, especially pages 1094–5.Google ScholarPubMed

17. The discussion of “indicator-rules” in “Authority and Value”, ibid., is an elucidation of the kind of indicative exclusionary force I think authoritative directives often have.

18. Cf. Regan, supranote 1 at 1027-8.

19. Raz, supranote 2 at 53-7.

20. I remind the reader yet again that I have excluded from the present discussion cases where authority promotes coordination. In such cases, an authoritative directive may be more than a mere indicator of other facts. But I would argue that it still gets its importance from its causal (not logical) connection with other facts, specifically facts about salience, which it may causally create. (“Authority and Value” supra note 1 at 1027-8) Even in the coordination context, there is an incongruity between the basic thrust of the normal justification thesis, according to which authority is a facilitator of behavior required by other reasons, and the claim that authoritative directives are intrinsic reasons, facts that matter in themselves.

21. Raz, supranote 2 at 62.

22. Raz suggests that what he suspends judgment about in the passage I am discussing is whether a clear mistake puts a directive outside the “jurisdiction” of the authority. (“Facing Up”, supra note 3 at 1184) Of course, a directive which is outside the authority’s jurisdiction is not an intrinsic reason for action. And so, if it were uncertain whether there were jurisdiction, it would also be uncertain whether the directive was an intrinsic reason. But in fact there is no uncertainty here about jurisdiction in any ordinary sense. We do not normally think a mistake in judgment, even a clear mistake in judgment, undermines jurisdiction. And in the present context, what we are talking about is a situation where an authority makes a clear mistake in a particular case that is unambiguously the sort of case the authority normally decides better than the individual - the sort of case, in other words, where the normal justification thesis creates “jurisdiction”, insofar as that idea is apposite. If the normal justification thesis ever justifies us in thinking that an authoritative directive is an intrinsic reason, it ought to do so here as well.

23. “Facing Up”, supra note 3 at 1184-85.

24. Raz, supra note 2, chs. 2, 3.

25. Raz, supra note 2 at 74, 77-8, 100.

26. “Facing Up”, supra note 3 at 1185.

27. Ibid., 1183, 1185.

28. Regan, supra note 1 at 1003-13.

29. “Facing Up”, supra note 3 at 1186, n. 70.

30. Regan, supra note 1 al 1013, 1015, 1019.

31. Raz, supra note 2 at 88-94.

32. Raz’s argument about respect for law is more promising because the version that appears in his response to me, (“Facing Up”, 1196-97) much more than the version in his book, (The Morality of Freedom, 97, 99) suggests that it may be interpretable as an argument which is not of the form “It would be a good thing if…”. The significance of this will become clear as I discuss Raz’s argument about consent in the text. (The question about what Raz’s argument actually is, is too complex to go into here.)

33. Regan, supra note 1 at 1036-39.

34. “Facing Up”, supra note 3 at 1197.

35. Notice that in objecting to the circularity of any attempt to prove consent is an intrinsic reason by an argument of the form “It would be a good thing if…”, I am not objecting to the self-referential quality of Raz’s notion of consent which he himself has pointed out (namely, that consent, if it works, is an act that creates an obligation by being intended to create an obligation). (The Morality of Freedom, 99) But even conceding that consent is not vitiated from the outset by being self-referential in this way, we still need an argument about why it actually succeeds in creating an obligation to obey, that is, about why, in this context at least, consent is an intrinsic reason.

36. “Facing Up”, supra note 3 at 1197.

37. Ibid.