Revisiting Raz: Inclusive Legal Positivism and Our Concept of Authority

Abstract:     
Joseph Raz has argued that the very possibility of moral criteria of legality is precluded by a proper understanding of our concept of authority - a concept that figures prominently in our understanding of law and the concepts that figure into legal practices. Given the way we understand the notion of authority, he argues, there cannot be a legal system with moral criteria of legality. The existence of moral criteria of legality is, on his view, as problematic as the existence of a married bachelor - and, ultimately, for the same reason: both are logically precluded by the content of the relevant concepts.

In this essay, I wish to explain and evaluate Raz's argument for this idea, an argument that depends on claims about our concepts of both law and authority. His argument in grounded, most immediately, in two claims. First, he argues it is conceptually true that law claims morally legitimate authority. Second, he argues the content of an authoritative directive must be identifiable without reflecting on the dependent reasons that justify the directive. I argue both claims are mistaken.

Keywords: authority, conceptual analysis, legal positivism, law and morality, inclusive legal positivism

Working Paper Series