Abstract.Legal philosophy must consider the way in which laws function as reasons for action. “Simple positivism” considers laws as merely reasons in the balance of reasons. Joseph Raz, as a representative of “sophisticated positivism,” argues that laws are exclusionary reasons for action, not merely reasons in the balance of reasons. This paper discusses Raz's arguments for his view. The Functional Argument provides no more reason for positivism than against it. The Phenomenological Argument is best supported by an account of how (...) character traits function in explaining behaviour. But then the distinction between exclusionary reasons and expressive reasons is obliterated. Legal positivism cannot absorb laws as expressive reasons for action. Raz's positivism implies the correctness of an anti‐positivistic legal theory. (shrink)

ABSTRACTAccording to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections (...) on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models. (shrink)

Joseph Raz’s _Argument from Authority_ is one of the most famous defences of exclusive positivism in jurisprudence, the position that the existence and content of the law in a society is a wholly social fact, which can be established without the need to engage in moral analysis. According to Raz’s argument, legal systems are _de facto_ practical authorities that, like all _de facto_ authorities, must claim _legitimate_ authority, which itself entails that they must be _capable_ of being an authority. Further, (...) once we properly understand what constitutes practical authority, as captured by Raz’s _service conception_, we realise that the directives of any authority (including the law) must be wholly identifiable without recourse to moral analysis. While the argument has previously been criticised on the grounds that the law does not claim legitimate authority, and further that the service conception of authority itself is inadequate, we argue here that the argument is actually in a worse position than these concerns recognise, for it relies upon the mistaken principle that a sincere belief or claim that _p_ guarantees _p_’s conceptual possibility. (shrink)

As a legitimate authoritative directive is a second-order reason, it defeats conflicting reasons by a process of exclusion. Nonetheless, a legitimate authoritative directive can be defeated by more weighty reasons, including, as I argue in this paper, the more weighty reasons it excludes. This is part of a value pluralist conception of authority, according to which there is no general rule for the resolution of conflicting reasons. And I advance this argument in response to the work of Joseph Raz. Although (...) Raz is a value pluralist, he posits a general rule for the resolution of some conflicts: namely, that an exclusionary reason cannot be defeated by a (more weighty) reason it excludes. This represents a weak version of value pluralism. My argument is that Raz does not succeed in his efforts to show that this general rule either better ensures conformity with reason or that it is justified by commitment to autonomy. (shrink)

Résumé Le problème moral de l'autorité peut s'exprimer ainsi : comment l'autorité, avec la déférence qu'elle implique, peut-elle être compatible avec la liberté et la rationalité? L'approche pluraliste sépare l'obligation politique de l'autorité. Pour les pluralistes, l'autorité est à la fois injustifiable et inutile, et donc l'obligation politique légitime, y compris le devoir d'obéir à la loi, n'implique pas de déférence. Je soutiens qu'il est possible de conserver l'engagement pluraliste envers des motifs de légitimité pluriels, tout en réfutant les objections (...) pluralistes à l'autorité. En conséquence, chaque fois que l'autorité a une légitimité, la question morale de l'autorité exigera une réponse. (shrink)

This is a canvass to the critical reaction to Joseph Raz’s service conception of authority, as well as actual or possible replies by Raz. Familiarity is assumed with the theory itself, covered in a previous article. The article focuses primarily on direct criticisms of Raz’s theory, rather than replies developed in the context of a theorist’s wider project.

Exclusionary defeat is Joseph Raz’s proposal for understanding the more complex, layered structure of practical reasoning. Exclusionary reasons are widely appealed to in legal theory and consistently arise in many other areas of philosophy. They have also been subject to a variety of challenges. I propose a new account of exclusionary reasons based on their justificatory role, rejecting Raz’s motivational account and especially contrasting exclusion with undercutting defeat. I explain the appeal and coherence of exclusionary reasons by appeal to commonsense (...) value pluralism and the intermediate space of public policies, social roles, and organizations. We often want our choices to have a certain character or instantiate a certain value and in order to do so, that choice can only be based on a restricted set of reasons. Exclusion explains how pro tanto practical reasons can be disqualified from counting towards a choice of a particular kind without being outweighed or undercut. (shrink)