Revisiting Raz: Inclusive Legal Positivism and Our Concept of Authority

American Philosophical Association Newsletter on Philosophy and Law, Vol. 6, No. 2, Spring 2007

19 Pages Posted: 23 Dec 2006 Last revised: 12 Oct 2008

Kenneth Einar Himma

University of Washington - School of Law

Date Written: December 21, 2006

Abstract

Joseph Raz has argued that the very possibility of moral criteria of legality is precluded by a proper understanding of our concept of authority - a concept that figures prominently in our understanding of law and the concepts that figure into legal practices. Given the way we understand the notion of authority, he argues, there cannot be a legal system with moral criteria of legality. The existence of moral criteria of legality is, on his view, as problematic as the existence of a married bachelor - and, ultimately, for the same reason: both are logically precluded by the content of the relevant concepts.

In this essay, I wish to explain and evaluate Raz's argument for this idea, an argument that depends on claims about our concepts of both law and authority. His argument in grounded, most immediately, in two claims. First, he argues it is conceptually true that law claims morally legitimate authority. Second, he argues the content of an authoritative directive must be identifiable without reflecting on the dependent reasons that justify the directive. I argue both claims are mistaken.

Keywords: authority, conceptual analysis, legal positivism, law and morality, inclusive legal positivism

Suggested Citation

Himma, Kenneth Einar, Revisiting Raz: Inclusive Legal Positivism and Our Concept of Authority (December 21, 2006). American Philosophical Association Newsletter on Philosophy and Law, Vol. 6, No. 2, Spring 2007. Available at SSRN: https://ssrn.com/abstract=953392 or http://dx.doi.org/10.2139/ssrn.953392

Kenneth Einar Himma (Contact Author)

University of Washington - School of Law ( email )

William Gates Hall
Box 353020
Seattle, WA 98195-3020
United States
206-543-4550 (Phone)

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