Putting the Sources Thesis in Its Place

Abstract

I will begin with a remark made by Timothy Endicott in a recent and very stimulating paper:

“Raz’s explanation of the nature of law is not undermined by the fact that evaluative judgments are necessary in order to identify the content of the law, as long as it is still possible for legal directives to have the exclusionary force that, in his theory of authority, they claim”.

What Endicott claims is that when determining the content of the law, you need to make evaluative judgments. These judgments are unavoidable due to the fact that the interpretation of the language of the law “sometimes calls for an explanation of the value of the law”. The problem, if any, is that this claim seems to contradict the sources thesis, which Joseph Raz states in the following way:

“All law is sourced based. A law is sourced-based if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument”.

Endicott claims that his argument does not contradict the sources thesis. My aim in this paper is to fully understand Endicott’s argument, so in section I), I will try to clarify the way evaluative arguments figure in the determination of the content of law according to Endicott; in section II), I will then sketch out the well known Razian argument regarding authorities, legal directives and their exclusionary force, in section III) I will argue that Endicott’s argument needs to comply with two conditions in order to save the authoritative aspect of legal directives; and section IV) tries to center the debate on the practical difference thesis, a point at which further argument is needed in order for Endicott’s argument to have some plausibility.