A Pragmatic Reconstruction of Law's Claim to Authority
Ratio Juris, Volume 32, Issue 1, 2019
38 Pages Posted: 14 Aug 2018 Last revised: 2 Oct 2018
Date Written: July 28, 2018
Raz holds that necessarily all legal authorities, even de facto authorities, make a claim to legitimate authority. He does not say that legitimacy is a necessary property of law. This view, which I call the claim view, constitutes my focal point in this paper. Many commentators have criticized this view. I discuss and dismiss three critiques of the claim view: the verification critique (the claim view is not empirically confirmed), the legalistic critique (law claims legal authority, not moral authority), and the semantic critique (legal obligations are semantically distinct from moral obligations). I submit that Raz equates the meaning of legal duties with that of moral duties and yet denies that legal statements entail moral propositions. In other words, I distinguish the semantic identity thesis from the semantic entailment thesis. Instead of a semantic interpretation of the claim view, I defend a presuppositional ascription of a general claim to moral authority to authoritative duty-imposing and normatively committed uses of legal language by official spokesmen. I show that law’s claim to authority does not prove the truth of the sources thesis, because conceptual confusion or insincerity can affect the epistemic reliability of the propositions embodied in the claim, and because facial immorality can cancel altogether law’s pragmatically presupposed claim to moral authority. I also argue that the claim view can only warrant two qualified versions of exclusive legal positivism, one of which is almost tautological, the other self-contradictory. Finally, I suggest that exclusive legal positivism cannot be defended on linguistic grounds.
Keywords: Legal Positivism, Joseph Raz, Authority, Law’s Claim, Legitimacy
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