Between Authority and Interpretation: On the Theory of Law and Practical Reason
The second part of my reply will purport to show that the rejection of moral objectivism does not lead to abandoning ILP. Non-cognitivist theories usually concern moral judgements containing the so-called thin moral concepts which, perhaps, possess only a prescriptive dimension, like good, right or ought. But the moral discourse also contains thick moral concepts, like honest, coward or degrading treatment and the moral concepts included in our constitutions are usually thick concepts.
It seems odd to reject the possibility of knowledge in the use of thick moral concepts. An explanation of the aptness to the truth and, therefore, to the objectivity of moral judgements which contain thick concepts, in the line of Harean prescriptivism, is to distinguish sharply between two dimensions of these concepts, namely, a descriptive and a prescriptive dimension. Their descriptive content has truth-conditions. Their prescriptive content fits their evaluative dimension. The descriptive content makes the concept to be guided by the world, its prescriptive dimension enables it to be a guide for action, to provide reasons for action.
Other authors, as Bernard Williams, think that the evaluative dimension cannot sharply be separated from the descriptive content, perhaps, because they think that evaluating is not totally reducible to prescribing, i. The members of the community where is in force the Spanish Constitution possess the concept of degrading treatment and we are able to apply it truthfully to certain cases. In this way, our constitutional statements referring to degrading treatments have aptness to truth and objectivity. It can be argued that the use of statements which contain thick concepts by legal interpreters or by courts as Constitutional Courts is a quotation use, a use referred to the understanding of degrading treatment in Spanish social morality, a use without evaluative dimension.
However, even though this possibility is maintained, the legal interpreters or the judges need to fashion the concept, to put it together with other close concepts, and, inevitably, fashioning moral concepts requires a moral background. That is to say, a conceptual network where the moral concepts have their place and this conceptual network must be checked, in a kind of reflective equilibrium, by appealing to our intuitions, and this in turn requires facing a moral reflection.
This conclusion allows us to submit that the application of constitutional provisions which contain moral predicates is not always discretional. There are clear cases of application of the concept "degrading treatments". Moreover, a concept without clear cases of application is not even a concept. It is obvious, however, that thick moral concepts are essentially contested concepts.
For this reason, there can be uncertainty in the application of a thick moral concept to an individual case, and different conceptions of the same concept can produce different solutions. It is convenient, however, to remind an argument by Joseph Raz, the major supporter of ELP, referred to the problem of discretion as connected to the application of moral standards: Supporters of such a conception [ILP] of the law have to provide an adequate criterion for separating legal references to morality, which make its aplication a case of applying pre-existing legal rules from cases of judicial discretion in which the judge, by resorting to moral considerations, is changing the law.
I am unaware of any serious attempt to provide such a test. However, at least for the cases of application of contested concepts resorting to morality, the criterion which ILP might use is the following: given that these concepts have an indisputable descriptive component and that they point to paradigms, in the paradigmatic cases, and also in those sufficiently close to them, judges apply pre-existent standards and do not change the law; by contrast, in the cases where different conceptions compete and solve the case in incompatible ways, judges have discretion.
The fact that the identification of applicable standards by courts resorts, in some cases, to morality, does not necessarily lead to the conclusion that legal theory is an evaluative practice; indeed, as Hart reminded us, 'description may still be description, even when what is described is an evaluation'. The Collapse Argument The Collapse argument asserts that ILP is a view highly unstable which, if properly understood, leads to the destruction of the core theses of legal positivism.
This is, as it is well-known, the opinion of Ronald Dworkin.
With his own words: It [Soft Conventionalism, as Dworkin calls ILP] is, rather, a very abstract, underdeveloped form of law as integrity. It rejects the divorce between law and politics that a conventionalist theory with the motives I described tries to secure. According to Dworkin, Soft Conventionalism claims that the law in a certain community includes all that is implicit in the conventions.
In this way, ILP maintains that there might be an abstract agreement about the criteria for identifying the law in a community, while, at the same time, there might be no agreement about, so to speak, their "implicit side" or "implicit contents". But, this is a very poor way of accepting what is implicit in the conventions: for logical reasons, it is always possible to go up to a more abstract, though less thick, agreement.
I will try to show that the Dworkinian conception, law as integrity, is in accordance with the Thesis Ib Social Sources Thesis and the Thesis IIb Separability Thesis of ILP and that his reject of the thesis IIIb Discretion Thesis depends on his conception of the legal practice as an interpretive practice of a special character, which needs additional premisses.
In his analysis of the stages of interpretation, Dworkin seems to assume a certain version of the Social Sources Thesis : First, there must be a 'preinterpretive' stage in which the rules and standards taken to provide the tentative content of the practice are identified. The equivalent stage in literary interpretation is the stage at which discrete novels, plays, and so forth are identified textually, that is, the stage at which the text of Moby-Dyck is identified and distinguished from the text of other novels. I enclose 'preinterpretive' in quotes because some kind of interpretation is necessary even at this stage.
Social rules do not carry identifying labels. But a very great degree of consensus is needed -perhaps an interpretive community is usefully defined as requiring consensus at this stage- if the interpretive attitude is to be fruitful, and we may therefore abstract from this stage in our analysis by presupposing that the classifications it yields are treated as given in day-to-day reflection and argument.
That is, Dworkin accepts a minimum element of conventionalism in the identification of the law, which is sufficient, in my opinion, to attribute him some version of the Social Sources Thesis a very weak version, as it were. The same thing happens with the Separability Thesis.
Here, Dworkin seems willing to accept that even though Nazi law was unjust, it did not lose at all, for that very reason, its character of "law" at least, in the preinterpretive sense : 'It [Nazy system] is law, that is, in what we have been called the 'preinterpretive' sense'. Such a rejection, however, requires additional premisses and it is by no means clear that these premisses are compatible with his conventionalist analysis and with his rejection of moral realism.
In this sense, M. Moore has written: My proper conclusion about all of this is that there is no way for Dworkin to hang on to both his conventionalist and his right answer theses. It is obvious to me which he should hang on to and which he should give up, although anyone with legal positivist inclinations will doubtlessly think just the opposite.
If the argument by Moore is right and I think that it is right , then the Dworkinian theory may be regarded as a specially optimistic form of ILP.
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Accordingly, ILP does not collapse at all into anti-positivism; on the contrary, it is law as integrity which appears as a form of ILP. The Authority Argument Nevertheless, the most important argument against ILP is, perhaps, the so-called "Authority Argument", which may be derived from the Razian conception of authority related to his account of the central thesis of legal positivism.
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Raz's argument is complex and has been widely revised and discussed. In the following, I'll limit myself to a very sketchy account of the argument, and focus on a few of its steps. A philosophical theory about the law ought to be useful in order to understand the more relevant features of the nature of this social institution.
The Place of Legitimacy in Legal Theory – McGill Law Journal – Érudit
A distinctive feature of law as compared with other coercive systems is its claim of authority. Legal authorities claim that their norms are legitimate, that is, they claim to be entitled to impose obligations upon the members of a social group. That, of course, does not mean that legal authorities are really legitimate, provided that their legitimacy depends on moral norms independent from legal norms.
However, a central point in order to distinguish a gunman from a legal authority is their invocation of reasons which justify their directives backed by threats. To attribute authority to someone is to recognize her capacity to bind us through her norms. Therefore, a philosophical theory should explain to us in which consists and to which extent it is possible that the law has authority. According to Raz, a positivistic outlook as to the law is the only suitable position in order to take the feature of authority into account.
The basic structure of his argument runs as follows.
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Normative authorities are practical authorities, i. For instance, we acknowledge no authority to a mad person in order to fix what percentage of our income should be destined as contribution to the public expenses. Valid norms are exclusionary reasons. They replace our ordinary reasons in the balance of reasons. Usually, authorities try to solve problems and social conflicts through their directives.
The justification of their norms is related to the underlying reasons that persons have in order to behave in a certain way. For this reason, Raz calls this conception the service conception of authority. One main feature of this conception is that authorities are legitimate only if their directives meet the following conditions: a the directives are such that, if our actions do actually follow them, our actions will be guided by the reasons they ought to be guided by; b the existence of such directives provides our actions with a better and more certain guidance.
The Authority of Law
Accordingly, legal authority provides us with the useful service of turning into established formulations norms those underlying reasons which should bear on the balance of reasons for our actions. This is the Dependence Thesis. Another feature of this conception of authority allows us to overcome the objection claiming the "irrelevance" of authorities, and it is called the Normal Justification Thesis.
In accordance with this thesis, the normal way to acknowledge authority to a person involves showing that an alleged subject is likely better to comply with reasons which apply to him if she accepts the directives of the alleged authority as authoritatively binding, and tries to follow them, than if she tries to follow the reasons which apply to her directly. Therefore, the fact that an authority makes an action obligatory is a reason for its performance which should not be added to all other relevant reasons in the deliberation of the subject, but, rather, it should replace her deliberation.
This is the Pre-emption Thesis. The pre-emptive function of authoritative directives entails that the subjects can identify the content of the directives without resorting to the dependent on underlying reasons, because this would mean to re-open the balancing of reasons. For this reason, to abandon the strong version the ELP version of The Social Sources Thesis implies to leave unexplained a central feature of the law: its authoritative nature.
This perspective assumes the claim of authority to be a central feature of the law, i. A claim, it is necessary to remind it, that Raz considers implausible for every norm of legal systems, and for this reason he thinks that it does not exist, not even in a prima facie way, an obligation to obey the law. This is a disputable idea. My criticism arises from the idea that the law does not claim the kind of authority described in the "service conception of authority". Specifically, the law does not claim that legal norms should always be considered opaque to the underlying reasons which justify them.
In my view, legal norms do often only partially replace some of the dependent reasons and require the resort to the underlying reasons for the identification of the law applicable by the courts. It is worthwhile reminding that Raz begins his explanation of the concept of authority with the example of two people who refer a dispute to an arbitrator.