Studies On Razian Authority Thesis

Joseph Raz, professor of legal philosophy and a fellow of Balliol College at Oxford University, and visiting professor at Columbia Law School. He has been dedicated to teaching and studying law, morality, and political philosophy. He made great achievements in legal philosophy, political philosophy, moral and practical reasoning. And he is one of the most outstanding contemporary scholars in law, moral and political philosophy.Razian works are profound and widely, which are represented by the followings: The Concept of a Legal System: An Introduction to the Theory of Legal System (Oxford: Clarendon Press, 1970); Practical Reasoning and Norm (Oxford University Press, 1972); The Authority of Law-Essays on Law and Moral (Oxford: Clarendon Press, 1979); Law, Morality and Society: Essays in Honor of H. L. A. Hart, (Oxford: Clarendon Press, 1979); The Morality of Freedom (Oxford: Clarendon Press, 1986); Engaging Reason: On the Theory of Value and Action (Oxford University Press, 1999). These works all touch on one subject that is legal authority. Razian research touches many aspects of legal authority, like the nature, characteristic and practical function of legal authority, the relationship between legal authority and individual autonomy, and etc. In this process, he not only inherits and develops legal positivism but also constructs a huge political philosophy system. In another word, Raz explores legal and political philosophy with authority thesis as his theoretical tool.This essay focuses on the review of Razian Authority Thesis, which is the key to understand his legal theory. Razian Authority Thesis mainly touches on three areas: legal philosophy, methodology and political philosophy. This essay is to review these three areas and demonstrate the fruit of his Authority Thesis. Certainly, a lot of necessary preparing work has been done before our reviewing.The introduction, The Authority Theory of Legal Positivism: from John Austin to H. L. A. Hart, is a summary of the authority theory of Austin and Hart, which is the theoretical background of Razian Authority Thesis. Legal authority has always been a hidden theme in the dispute on relationship between law and morality raised by legal positivism and nature law. In order to solve the problem of the absence of legal authority foundation caused by the invalidation of nature law, the legal positivists in 20^th century have been trying to find out the factual foundation of legal authority. The pioneer scholar in this field is John Austin. The most accomplished is H. L. A. Hart. The comprehensive expression of legal authority is done by Joseph Raz. I find that there are three main characteristics of legal positivist authority theory. First, legal authority is a special kind of practice authority. Second, the authority theory is transferred from 'external' to 'internal'. Third, legal authority is a combination of factual and normative expects.Chapter one, Razian authority conception--'service conception', is a systematic introduction and analysis of Razian authority conception. Raz adopted the reasonable elements from Austin's and Hart's authority views and put forward three features of legal authority: dependence, pre-emptive and justification, which is cohered in three thesis: Dependent Thesis, Pre-emptive Thesis and Normal Justification Thesis. These three theses constitute Razian 'service authority conception'.Chapter two, The Contributions of the Authority Thesis to Legal Philosophy, expatiates that the Authority Thesis complemented and developed legal positivistic theory. Legal positivists have been focusing on two foundational questions: 'the separation of law and morality' and 'the identification of legal validity'. Razian studies on theses problems didn't surpass the traditional limits, but he provided another unique perspective of testifying the validity of law-'Authority Thesis'. In my opinion, it's not important for social theory to seek for the right answer but for the perspective of solving problems. Therefore, 'the Authority Thesis' itself is a great contribution to legal theory.Chapter three, The Methodological Significance of the Authority Thesis, discusses the judicial view contained in the Authority Thesis. The legal positivism in 20^th century is a theory for practice. From the judicial point, Raz explained that 'authority' is an exclusive reason for action and legal directives are content-independent reason. Speaking specifically, the determination of validity doesn't depend on its (moral) content, and the court decision isn't determined by disputed dependent reasons. This doesn't mean that the judge can be at discretion in the judicial process, because a devoted judge must take rules seriously. In this chapter, I make further study Razian Authority Thesis-the nature and placement of legal rules and legal principles. Chapter Four, Legal Authority and Moral Autonomy, discusses the response of the Authority Thesis to political problems. This chapter first presents the paradoxical of authority raised by Wolff, which is one of the major problems solved by Razian Authority Thesis. According to Wolff, obedience to authority means giving up individual moral autonomy and rational judgment. In the response to Wolff, Raz developed instrumental justification, which he calls 'Normal Justification Thesis'. Instrumental justification establishes the partial obligation of obedience to the law. It says that government occasionally issues some orders about what we should do while our critical review on the order is not necessary. This only applies to the condition that the agent obey the law is better than following his own judgment. According to Raz, the function of law is to rule people's actions, which helps to solve the problem of social cooperation and helps people behave properly according to the right reason. While obeying the authority, people just partially give up individual moral autonomy and rational judgment, which is necessary and justified. Razian profound interpretation of individual autonomy is the primary substitute theory of John Rawls' liberalism.This essay introduces Razian authority thesis by using description and comments at the same time. There are comments among presentation and comments are based on introduction. At the end of each chapter, there is my own review on the problems appeared in the chapter. These reviews mainly aimed at the problems that we have encountered or may encounter in the construction of rule of law in China. Such as: the practice significance of legal authority, institutional legal sources, the relationship between judicial authority and fallibility, and the relationship between legal authority and individual autonomy. The main innovations of this essay are as follows:1. In recent years, the Chinese scholars have recognized the importance of Raz in contemporary western legal philosophy and paid more attention to his theory. At present, there are two books by Raz, The Authority of Law and The Morality of Freedom, have been translated and published in China. Some scholars have done pertinence introduction and study on his theory, which forms the foundation for our systematic study. This essay centers on Razian Authority Thesis, introduces and reviews on Razian legal theory systematically, which deepen Chinese scholars' studies.2. This essay summarizes three features of legal positivist authority view. First, legal authority is special kind of practice authority. Second, the authority theory is transferred from 'external' to 'internal'. Third, legal authority is a combination of factual and normative expects. This will be helpful to our systematic studies on legal positivist authority theory.3. This essay not only introduces Razian Authority Thesis into China, but also reviews the problems appeared in the constructions of rule of law in our country and makes some interesting remarks. For example, I think legal authority doesn't come from the infallibility of its content and legal authority can only maintain formal infallibility. Another example, I think citizens don't have the universal obligation to obey law. But law is a kind of "simplification system of social complex", so citizens should choose to respect and obey the law, etc.Of course, this essay has some imperfection, which I think is unavoidable in the study of foreign legal culture. I find that I can't form 'fusion of horizons' with the original work completely. Every one of us is a carrier of a special culture. The culture we live in has left a deep mark on us. Therefore we always approach western legal works with a kind of 'prejudge'. That's why we often feel (maybe it's just my personal experience) that the western system culture we talked about tastes like a half-boiled meal. Trying my best to avoid these problems, I started to communicate with professor Raz on the internet. I really appreciate his patience to answer so many questions that I put forward. With his encouragement and help, I get a better understanding of his academic thoughts. In fact, my questions make professor Raz sink in his memory, for his main thoughts formed in 1970s-80s. Furthermore, due to my limited social experience, my reviews on the legal problems in our country seem not mature. However, as a doctor dissertation which centers on introduction, I think this essay has fulfilled its original purpose.