Law's Authority Is Not a Claim to Preemption

Abstract

Joseph Raz argues that legal authority includes a claim by the law to replace subjects’ contrary reasons. I reply that this cannot be squared with the existence of choice-of-evils defenses to criminal prosecutions, nor with the view that the law has gaps (which Raz shares). If the function of authority is to get individuals to comply better with reason than they would do if left to their own devices, it would not make sense for law to claim both to pre-empt our contrary reasons and to leave open spaces or catch-all exceptions which we must use our own devices to fill.

Keywords: authority, Joseph Raz, gaps in law, necessity criminal defense, service conception