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Practical Reasons, Authority And The Sources Thesis

Posted on:2008-07-15Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z ZhuFull Text:PDF
GTID:1116360242959725Subject:Legal theory
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In order to defend legal positivism, Joseph Raz develops the sources thesis that all law is source-based. The sources thesis is the strong standpoint of the legal positivism and insists a strong separability thesis that there is no necessary connection between law and morality. This opinion of Raz is one of the theoretical productions in response to Dworkin's criticism on Hart's legal positivism. Fundamentally Raz attempts to settle the problem of the relation between law and morality, that is to say, whether the criteria of legality set in the rule of recognition can include morality. On this respect, Raz's most important contribution is that he defends the sources thesis by the argument of authority. He attempts to settle deputes among different legal positivists and those between them and Dworkin through the authority thesis (law necessarily claims legitimate authority). There are clearly three theses concerning the relationship between law and morality: the sources thesis of Raz, the incorporation thesis of Coleman and the coherence thesis of Dworkin. Raz's intention is not only in defense of the sources thesis by authority, but criticizes the incorporation thesis and the coherence thesis. Accordingly, Raz's great contribution to legal philosophy lies not in the sources thesis, but in his introduction of the concept of authority which belongs to the realm of political philosophy and moral philosophy traditionally and settles deputes of the relation between law and morality in legal philosophy by the authority thesis. This article critically investigates Raz's legal philosophy according to the practical reasons, authority and the sources thesis.The article can be divided into four parts apart from the introduction and the epilogue. The first chapter mostly states the Hart/Dworkin Debate as the framework of Raz's legal philosophy. In order to search the origin of problem in the context of legal positivism for Raz's legal philosophy, this chapter concentrates on the respective views and true meaning of their separability thesis in legal positivism. The center of the debate consists in whether there is necessary connection between law and morality. Hart thinks that there is no necessary connection between law and morality, while Dworkin thinks that the rule of recognition can neither identify the principles, nor can it be a social rule; all rules are normative, and that there is necessary connection between law and morality. When legal positivists respond to the critiques from Dworkin, they diverge on the content of the legality of the rule of recognition. Thus legal positivism is divided up into the exclusive legal positivism and the inclusive legal positivism. The so-called"exclusivity"means to exclude morality while identifying the legal identity. It is the sources thesis against Dworkin. Raz justifies the sources thesis by the argument from authority. Here the concept of authority is the legitimate practical authority, and thus the concept includes both what the practical authority means and what conditions enable practical authority to be legitimate. The two aspects constitute main body of the following two parts.The second chapter of this article discusses the general theory of authority and analyses the nature of practical authority according to the concept of reasons. In recent legal philosophy, the inquiry into the nature of legal authority and the foundation of legal obligation has enjoyed a revival that has made it one of the most seductive topics in contemporary jurisprudence. Authority is the central concept of the legal philosophy and the political philosophy. In legal philosophy, Raz introduces the concept of authority for legal theory and advances the research about authority. He establishes the conceptual connection between law and authority and resolves the debates about the relations between them in legal philosophy. The difference of the first-order reasons and the second-order reasons is one of Raz's most important philosophical insights that have noticed that the determination of what ought to be done on the balance of first-order reasons is not the only mode of practical reasoning upon which people rely. Sometimes we decide what to do on the basis of what Raz calls second-order reasons, which he defines as"reasons to act on or refrain from acting on a reason."The most important category of second-order reasons recognized by Raz is that of exclusionary or peremptory reasons. Practical authority not only provide rational agents with first-order reasons to act, but also with second–order reasons for not acting on certain other reasons, namely content-independent and exclusionary reasons for action. The exclusionary or peremptory reasons are not the first-order ordinary reasons added to the action of agent, but exclude and replace all first-order reasons. These second-order reasons prevail over potentially competing reasons, not by outweighing those reasons, but by precluding an agent's acting on them. The second–order reasons preclude the agent's own independent judgment. To some extent, this breaches personal autonomy, because the autonomy is the symbol of the enlightenment. Thus we need to justify the authority. Then the third chapter critically discusses Raz's mode of justification and at he same time the argument about the mode is also performed by the more general theoretic framework of"the paradox of authority and autonomy". Any justification on authority cannot circumvent the paradox advanced by Robert Paul Wolff. First, I introduce the philosophical anarchism of Robert Paul Wolff, in turn discuss many critical opinions of Raz, Frankfurt and so on, and construct the theoretical approach to the paradox on the basis of above, which indicates that we must settle the paradox from the perspective of autonomy. Second, this article specifies Raz's mode of justifying authority, namely the service conception of the function of authorities. In order to justify authority, Raz develops three normative theses: the dependence thesis, the normal justification thesis and the pre-emption thesis. The first two theses articulate what Raz calls the service conception of authority. Finally, after critically reviewing Shapiro's criticism of Raz, I think that Shapiro doesn't go deep into Raz's internal approach to justify authority. Then I bring forward a possible critical approach on the basis of the dichotomy of Bernard Williams'"Internal and External Reasons".With the above argumentation as a basis, the fourth chapter specifies how Raz justifies the sources thesis by the argument from authority. The authority thesis is the thesis that law necessarily claims legitimate authority. Raz uses the authority thesis to support the sources thesis and accordingly defends the strong separability thesis about law and morality. He takes the sources thesis, not the separability thesis, to be the essence of positivism. In order to realize the task, Raz accomplishes two arguments: first, he establishes the conceptual connection between law and authority; second, he forcefully supports the sources thesis in terms of the legal authority thesis. A necessary step for argument having to do with it is to show that theories of Coleman and Dworkin are not incompetent with the nature of legal authority. First, according to many opinions of Raz, I demonstrate the conceptual connection between law and morality and analyze several key words:"necessity","claim"and"conceptual". Raz thinks that law either claims that it possesses legitimate authority or is held to possess it. If the claim to authority is part of the nature of law, then law must be capable of possessing authority. Second, on the one hand, Raz justifies the sources by the argument from authority, on the other hand, he points out that the incorporation thesis and the coherence thesis are not consistent with the authority thesis, thus are wrong."Law necessarily claims legitimate authority", the judgment about the nature of law, necessarily supports the sources thesis, because legal norms are the exclusionary reasons and must be identified independently, not depending on the same considerations which they must consider when deciding. Finally I attempt to clarify many misunderstandings and perfect Raz's argument on the basis of the appraisement of several representative critical opinions.
Keywords/Search Tags:the Separability Thesis, Reasons, Authority, the Sources Thesis, Exclusive/Inclusive Legal Positivism
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