60 Pages Posted: 4 Sep 2006 Last revised: 12 Oct 2008
Joseph Raz's famous authority-based critique against inclusive positivism includes the claim that "it is part of the very nature of law that it claims legitimate authority." Although this now seems to be predominant view among legal positivists, inclusive and exclusive, I argue that it is problematic. First, I identify a number of difficulties in interpreting the claim that a legal system, which is a system and hence an abstract object, can make "claims" to begin with. Second, I argue that Raz's arguments for this conclusion, most plausibly construed, fail. Third, I give a counterexample to the claim by describing something that has all the distinguishing features of a legal system except for those that Raz believes makes a claim to authority (e.g., the use of such terms as "rights" and "obligations"). I argue that this system is properly characterized as a legal system -- despite the absence of these features.
Keywords: Raz, authority, exclusive positivism, inclusive positivism, legitimate authority, law, legal positivism
Suggested Citation: Suggested Citation
Himma, Kenneth Einar, Law's Claim to Legitimate Authority. HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW, Jules L. Coleman, ed., Oxford: Oxford University Press, 2001. Available at SSRN: https://ssrn.com/abstract=928095
By Joseph Raz
By Leslie Green
By Brian Leiter