Legal Directives in the Realm of Practical Reason: A Challenge to the Pre-Emption Thesis
American Journal of Jurisprudence, Vol. 52, p. 159, 2007
Posted: 7 Jul 2008 Last revised: 4 Apr 2012
This paper critically examines Joseph Raz's pre-emption thesis, according to which the requirements of an authority are reasons for action which are "not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them". I begin by drawing attention to certain cases in which citizens should disobey a directive of state officials or institutions for moral reasons. I examine two possible ways in which proponents of the pre-emption thesis may try to account for these cases: namely, (1) by saying that the directives in question fail to qualify as authoritative, and thus the pre-emption thesis does not purport to apply to them; or (2) by saying that the exclusionary force of authoritative directives is meant to have a limited scope, and the reasons that call for disobedience in the above situations are not within that scope. I argue that neither (1) nor (2) can be established without recourse to arguments which themselves run counter to the pre-emption thesis. Thus, the cases in question turn out to be counterexamples to the pre-emption thesis.
Keywords: Law, authority, Joseph Raz, reasons for action, exclusionary reasons, pre-emption
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