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Draft – 7/11/2007 – Forthcoming: 52 Am. J. Juris. (2007)

LEGAL DIRECTIVES IN THE REALM OF PRACTICAL REASON: A CHALLENGE TO THE PRE-EMPTION THESIS

Noam Gur

In what way do legal directives—e.g., legal rules, decrees, and rulings—bear on practical

reason? That is, in what way do legal directives bear on the reasons for action of the people to

whom they are addressed?1 Joseph Raz’s pre-emption thesis offers a possible basis for an answer to

this thorny and fundamental question. The thesis contends that: the fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.2

The above thesis—and, at its heart, the Razian notion of exclusion of reasons3—has had a

remarkably profound impact on the study of jurisprudence. Many nowadays conceive of law’s

normative force and the notion of legal authority in terms of that thesis: to bind authoritatively

means, on this understanding, to provide pre-emptive reasons. But the pre-emption thesis’s

repercussions reach even further provinces. The thesis has been assigned an important role in the

advocacy of Raz’s exclusive positivism against other prominent schools of thought in contemporary

jurisprudence.4 Roughly put, this line of argument of exclusive positivism contends that law can

pre-empt reasons for action only if its content is identifiable without recourse to those reasons for

action, and since authoritative law does (and is meant to) pre-empt reasons for action, it must be the

case that its content is identifiable that way.5 These far-reaching implications of the pre-emption

thesis leave no doubt, to my mind, as to the importance of scrutinizing the thesis’s own validity and

strength. It is this task that is taken up in this paper.6

1 The subject of practical reason and norms has been extensively explored by Joseph Raz (see for example Joseph Raz, Practical Reason and Norms, 2d ed. [Princeton: Princeton University Press, 1990] [hereafter: PRN]). Many of the terms I use and premises on which I proceed in this context have been explained and defended by Raz. 2 Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 46 (hereafter: MF). 3 Raz, PRN, 39. 4 Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994), 214–235 (hereafter: EPD). See Ronald M. Dworkin, “Thirty Years On,” Harvard Law Review 115 (2002) 1655, 1669–1676; Roger A. Shiner, “Exclusionary Reasons and the Explanation of Behaviour,” Ratio Juris 5 (1992) 1; Tim Dare, “Raz, Exclusionary Reasons, and Legal Positivism,” Eidos 8 (1989) 11. 5 n. 4. 6 For other critiques and evaluations of the pre-emption thesis and the notion of exclusionary reasons, see for example D. S. Clarke, “Exclusionary Reasons,” Mind 86 (1977) 252; Richard E. Flathman, The Practice of Political Authority: Authority and the Authoritative (Chicago: University of Chicago Press, 1980), 109–125; Chaim Gans, “Mandatory Rules and Exclusionary Reasons,” Philosophia 15 (1986) 373; Michael S. Moore, “Authority, Law, and Razian Reasons,” Southern California Law Review 62 (1989) 827; Stephen R. Perry, “Second-Order Reasons, Uncertainty and Legal Theory,” Southern California Law Review 62 (1989) 913; Donald H. Regan, “Authority and Value: Reflections on Raz’s Morality of Freedom,” Southern California Law Review 62 (1989) 995; Larry Alexander, “Law and Exclusionary Reasons,” Philosophical Topics 18 (1990) 5, 8–9; Fredrick Schauer, Playing by the Rules (Oxford: Clarendon Press, 1991), 88–93; William A. Edmundson, “Rethinking Exclusionary Reasons: A Second Edition of Joseph Raz’s Practical Reason and Norms,” Law and Philosophy 12 (1993) 329; Heidi M. Hurd, “Challenging Authority,” Yale Law Journal 100 (1991) 1611; Dworkin, “Thirty Years On,” supra, note 4, 1671–1672; Emran Mian,

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I shall begin by sketching the main tenet of the pre-emption thesis. The term “exclude,”

which figures in the thesis, is employed by Raz to suggest that an authoritative directive, in addition

to giving a reason for action, gives an exclusionary reason: a reason to refrain from acting for

certain other reasons.7 Such exclusionary reasons are conceptualized by Raz as belonging to a

second order of reasons, in the sense that, instead of bearing directly on our actions, their effect

pertains to other (first-order) reasons for action.8 Exclusionary reasons do not compete in weight

with the reasons they exclude, as reasons of the same order do where they conflict with one another.

Rather, in the case of a conflict between exclusionary reasons given by an authoritative directive

and the purportedly excluded first-order reasons, the former will always prevail regardless of the

latter’s weight.9 Which reasons are thus excluded? Raz’s answer is that an authoritative directive

excludes the reasons underlying it (or its “background reasons,” as I will sometimes refer to them),

i.e., first-order reasons that the authority had power to consider when issuing that directive.10 On

various occasions, however, Raz refers to a narrower scope of excluded reasons, to the effect that

not all of the underlying reasons for and against the directive-act are said to be excluded, but rather

only those against it.11 To illustrate the gist of the pre-emption thesis, consider the following

example. John drives to his workplace via a road on which the speed limit, set by a legal

authoritative rule, is 40 mph. According to the pre-emption thesis, John ought to treat this rule as an

exclusionary reason; thus, for instance, even if John is late to work, which may be a reason for him

to drive faster than 40 mph, under the speed limit rule he should not act on a balance of reasons that

weighs up this reason to drive faster than 40 mph against the opposing reasons the rule provides, as

the rule excludes the former from his reasons for action.

An alternative conception, which Raz refers to as the “common view” and which he then

rejects,12 is what I shall entitle here the weight-conception of legal directives’ bearing on practical

reason (in short, the weight-conception).13 On this view, legal authoritative directives do not

exclude reasons for action. Rather, they give rise to certain reasons that compete with opposing

“The Curious Case of Exclusionary Reasons,” Canadian Journal of Law and Jurisprudence 15 (2002) 99. Raz has replied to some of these reviews in Raz, MF; the postscript to Raz, PRN; Joseph Raz, “Facing Up: A Reply,” Southern California Law Review 62 (1989) 1153, among other writings. 7 By reference to his notion of exclusionary reasons: Raz, PRN, 39. 8 Ibid., 36, 39. 9 Ibid., 36, 40, 189, 190. Note that, according to Raz, conflicts between two second-order reasons turn on their relative weight (ibid., 40). 10 Ibid., 192; Raz, “Facing Up,” supra, note 6, 1194. 11 Joseph Raz, “The Problem of Authority: Revisiting the Service Conception,” Minnesota Law Review 90 (2006) 1003, 1018; Raz, PRN, 144. 12 Raz, PRN, 191–192. More precisely, he discusses at this juncture one possible approach that can be subsumed under the weight-conception. 13 Note that the weight-conception merely purports to capture the way authoritative law bears on practical reason. The notion of weight comparison is not intended to, and arguably cannot, account for all types of conflicts between moral reasons (Cf. Timothy A. O. Endicott, “Interpretation, Jurisdiction and the Authority of Law,” The American Philosophical Association Newsletters 6 [2007] 14, 15).

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reasons by means of their weight.14 The weight-conception, as defined herein, is in fact a generic

title broad enough to encompass a range of nuanced approaches. One such approach, for instance,

runs along the following lines: the effect of a legal authoritative directive on our practical reasoning

may be grounded, inter alia, in the fact that the authority is in a better position to make the relevant

decision, as it has advantageous knowledge, expertise, insight into broader and long-term policy

considerations, etc. To the extent that these conditions obtain, in the presence of an authoritative

directive prescribing an act A, we have reasons to regard the case for doing A as weightier than it

would have seemed to us in our independent and uninfluenced judgment.15 Furthermore, a legal

authoritative directive may bring about an actual shift in the balance of reasons; it may give rise to

some reasons for action that place weight on the balance, tilting it in favor of doing what the

authority requires. For example, an authority may have better resources, effective measures of

enforcement and salience, all of which render it apt to affect the conduct of people; this means that,

insofar as we want to co-ordinate with others, we have a further reason to follow the authority’s

directives.16

The preceding factors, when present, make it likely that by following a given authoritative

directive subjects improve their conformity with reasons applying in the relevant context. Further

reasons, to which legal authority gives rise, derive from more general considerations related to the

overall function of a legal system (rather than consideration of conformity with reasons underlying

a particular legal directive or a particular legal context). For instance, the violation of at least some

types of legal directives may have undermining repercussions for the effective functioning of a

legal system, which is, in turn, normally essential to the securing of certain goods that are vital

from the perspective of citizens.17 Such factors may entail an additional reason to follow legal

directives.18 These are merely examples meant to illustrate the main principle of the weight-

conception;19 they are not an exhaustive list of the reasons that arise in the presence of legal

14 Raz agrees that legal reasons have a dimension of weight (Raz, PRN, 77), but he maintains that conflicts between legal (authoritative) reasons and underlying reasons do not turn on their relative weight, but rather are resolved by way of exclusion. This exclusion claim is the crux of the disagreement between the pre-emption thesis and weight-conception. 15 See Regan, “Authority and Value,” supra, note 6, 1004–1018, 1086–1095; Alexander, “Law and Exclusionary Reasons,” supra, note 6, 8–9; Perry, “Second-Order Reasons, Uncertainty and Legal Theory,” supra, note 6, 932–945; Hurd, “Challenging Authority,” supra, note 6, 1667–1677. 16 See Regan, “Authority and Value,” supra, note 6, 1025–1031; Alexander, “Law and Exclusionary Reasons,” supra, note 6, 7. 17 For example, it is likely to be conducive to their ability to predict the consequences of their acts, and thus to advance certainty about what they ought to do; it provides non-violent means of dispute resolution, etc. 18 This may connote the Rawlsian duty to comply with just institutions (John Rawls, A Theory of Justice, rev. ed. [Oxford: Oxford University Press, 1999], 293). 19 For further variants of the weight-conception, see Schauer, Playing by the Rules, supra, note 6, 112–118; Gans, “Mandatory Rules and Exclusionary Reasons,” supra, note 6; Moore, “Authority, Law, and Razian Reasons,” supra, note 6; Clarke, “Exclusionary Reasons,” supra, note 6; Flathman, The Practice of Political Authority, supra, note 6, 119; Dare, “Raz, Exclusionary Reasons, and Legal Positivism,” supra, note 4, 26. See also Gerald J. Postema, “Positivism, I Presume?... Comments on Schauer’s “Rules and the Rule of Law”,” Harvard Journal of Law and Public Policy 14 (1991) 797.

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directives, nor need we enter into discussion concerning the foregoing examples and the extent of

their application.

According to the weight-conception, then, the reasons generated by an authoritative

directive conjoin with other reasons that subjects have (regardless of the law) for performing the act

prescribed by the directive, if they have such reasons, and assign additional weight in favor of this

course of action. Moreover, these legal reasons compete in weight with reasons subjects have

against the directive-act, in cases where they have such reasons. The weightier these legal reasons,

the more they would tip the balance in favor of acting as the directive prescribes. Accordingly, at

least under certain conditions, it is appropriate to adopt a (defeasible) presumption that authoritative

directives should be followed.20 Employing such a presumption saves one the need to engage in

constant laborious deliberation on reasons; it merely requires one to keep an eye open and not to

lose touch with the applicable reasons, so as to ensure that one is not led to action that exceedingly

departs from these reasons.21 Thus, the weight-conception does not suggest that whenever a subject

deems that a directive he faces is wrong, or envisages good reasons against the act it prescribes, he

ought to defy it. Rather, on this conception, a subject ought to defy a directive only where, despite

the tilting effect legal reasons have on the balance of reasons, reasons against the directive-act are

weightier than (non-legal and legal) reasons in favor of it.

The weight-conception will not be the primary focus of the analysis henceforth. Instead, the

analysis will pose a challenge to the pre-emption thesis, while the weight-conception figures in the

background as an alternative that is not susceptible to the same challenge. Thus, insofar as the pre-

emption thesis will fall short of meeting the challenge, credence will be lent to the weight-

conception. I shall now introduce the method I am going to use in order to challenge the pre-

emption thesis. For this purpose, consider the following hypothetical dialogue:

George: Reasons of type X (hereafter: Reasons-X) exclude reasons of type Y (hereafter: Reasons-Y), rather than being added to them. Thus, whenever there occurs a conflict between Reasons-X and Reasons-Y, the former will prevail regardless of the relative weight of these reasons. Catherine: Your claim is an appealing one but, at the end of the day, I think it is incorrect. Reasons-X do not exclude Reasons-Y, and thus whenever there occurs a conflict between the two reasons it will be resolved by their relative weight. In many cases Reasons-X and Reasons-Y will not be in conflict at all. Moreover, where such a conflict arises, often Reasons-Y will be less weighty than Reasons-X, and thus the

20 See Tony Honoré, “Must We Obey? Necessity as a Ground of Obligation,” Virginia Law Review 67 (1981) 39, 48, concerning the practical significance of a presumption in favor of a duty of obedience; Fredrick Schauer, “Rules and the Rule of Law,” Harvard Journal of Law and Public Policy 14 (1991) 645, 677; Schauer, Playing by the Rules, supra, note 6, 196–206, who takes rules to posses presumptive force in decision-making. As Schauer stresses, the connotation here is not merely of “the strictly epistemic sense of ‘presumptive’” (ibid., 203), but rather of various, not necessarily epistemic, normative inputs of rules into decision-making (ibid., 203–204). More generally on presumptions, see Raz, MF, 8–11; Edna Ullmann-Margalit, “On Presumption,” Journal of Philosophy 80:3 (1983) 143. 21 Schauer, Playing by the Rules, supra, note 6, 91; Schauer, “Rules and the Rule of Law,” supra, note 20, 677, 679. This is one sense in which, rather than being excluded, underlying reasons play a continuous role in practical reason (ibid., 677–679).

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latter will prevail (we may even adopt, at least under certain conditions, a presumption to that effect). Hence, practically, in many cases it will appear as if Reasons-X exclude Reasons-Y, and this appearance might lead one to think in terms of exclusion. However, what is really taking place here is that Reasons-X overcome Reasons-Y by virtue of weight. George: What leads you to think that these conflicts turn on the weight of reasons rather than on an exclusionary force? Catherine: One way of proving my claim is to show that in some cases (at least one) of a conflict between Reasons-X and Reasons-Y, where the latter reasons are very weighty, they prevail over the former and not the other way around. Such a phenomenon cannot be accounted for by an exclusion-conception, while it is explicable by a weight-conception. If you agree with me (as I think you would) on what is the right practical resolution, i.e., what is the right thing to do, in these cases, then you will have two available ways to defend your exclusion claim: (1) showing that reasons which are defeated in these cases are in fact not Reasons-X (and hence are not the type of reasons claimed to be exclusionary); or (2) showing that reasons which prevail in these cases are in fact not Reasons-Y (and hence are not the type of reasons alleged to be excluded). If I manage to show at least one such instance in which neither (1) nor (2) are sustainable, I will have made the case against your account and lent support to the alternative account.

A similar principle is applied in this paper regarding the contention that legal authoritative

directives are exclusionary reasons: I introduce two categories of cases in which subjects face a

certain legal directive, but should (and, we may expect, many of them would) disobey the directive

for moral reasons (Section I). I subsequently investigate two issues: (1) whether the directives in

question are not authoritative ones, and therefore the pre-emption thesis does not purport to apply in

these test cases (Section II); and (2) whether the pre-emption thesis, if it is supposed to apply, may

accommodate these test cases by affirming that the reasons prevailing there are not within the

purview of the allegedly excluded reasons (Section III). I argue that: (1) no satisfactory criterion is

able to rule out the possibility that the pre-emption thesis purports to apply in the cases in question;

and (2) no satisfactory criterion is able to establish that the reasons prevailing in these cases are not

within the scope of the supposedly excluded reasons. I then turn to discuss a residual issue—the

degree of clarity with which subjects can recognize that a directive should be disobeyed in our test

cases—and I contend that the key to solving the aforementioned difficulties does not lie with this

issue either (Section IV). Hence, I suggest, these are counter-examples to the pre-emption thesis, as

they turn out to be cases where subjects ought to, and are likely to, act for reasons alleged to be

excluded or indistinguishable from allegedly excluded reasons.

A few more preliminary remarks are in order before we turn to the argument. First, a note on

some suppositions I make and terminology I employ: (1) the analysis proceeds on the assumption

that authoritative law makes a certain difference in terms of practical reason, i.e., that it affects in

some way what subjects ought to do (or at least what they ought to regard as such, in view of the

information they have). (2) My terminology includes references to authoritative law as a reason for

action or as generating a reason for action. By this terminology, I do not mean to contest the

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substantive view that the law itself (or the fact that a certain law exists) is not, and does not

generate, a reason for action, but rather it is merely indicative of reasons for action that subjects

have irrespective of the law or it changes existing reasons for action by affecting factual conditions,

such as people’s conduct.22 In principle, the above view fits into the category I term the weight-

conception.23 Having said that, it is impossible to consider that view on its merits in the present

essay. (3) I shall assume, for purposes of the discussion, that reasons for action generated by

authoritative law are “content-independent,”24 i.e., that an authoritative directive obtains its status as

a reason for action because it emanates from an authoritative source, and not due to the merits of the

conduct it requires.25 The content-independence thesis, it bears noting, is requisite for the pre-

emption thesis’s validity; for if one holds that the status of a given authoritative directive as a

reason for action is predicated, partly or wholly, on the merits of the conduct it requires—i.e., its

conformity with underlying reasons—one may not allege, as the pre-emption thesis does, that the

directive is a reason for action that excludes its underlying reasons.

Another cluster of preliminary comments should be made about the confines of this paper:

(1) it is an examination of the notion of exclusionary reasons merely in the legal context, i.e., the

claim that legal authoritative directives exclude reasons underlying them. The paper will not discuss

Raz’s contention that the way various other normative concepts that extend beyond the legal sphere

(e.g., decisions, personal rules, promises)26 bear on practical reason is best captured by the notion of

exclusionary reasons. Nothing that will be asserted here, therefore, should be understood as an

assertion regarding these normative concepts.27 Similarly, the discussion will focus on legal

authorities, rather than non-legal authorities28 such as the one parents exercise over their children.

22 Suggestions along similar lines have been made, for example, by Donald Regan (See his “Authority and Value,” supra, note 6, 1022–1032; “Law’s Halo,” Social Philosophy and Policy 4 [1986] 15; and “Reasons, Authority, and the Meaning of Obey: Further Thoughts on Raz and Obedience to Law,” Canadian Journal of Law and Jurisprudence 3 [1990] 3) Larry Alexander (Alexander, “Law and Exclusionary Reasons,” supra, note 6, 7–9) and Heidi Hurd (Hurd, “Challenging Authority,” supra, note 6, 1641–1677). See also Perry, “Second-Order Reasons, Uncertainty and Legal Theory,” supra, note 6, 930, noting that authoritative directives are not “objective” reasons for action. 23 As far as epistemic reasons are concerned, first, a reason to believe in some state of affairs (e.g., last night’s weather forecast, predicting that it will not rain today) is contestable by reasons to believe the contrary (e.g., the sky being very cloudy this morning). Second, inasmuch as we have less than certain beliefs about the relevant reasons for action— which is often the case—the degree of uncertainty should be factored into our practical weighing (e.g., my decision of whether to carry an umbrella today will turn on how strong my desire to avoid getting drenched is, weighed together with the probability that it will rain today as known to me, against all reasons not to carry an umbrella). See Perry, “Second-Order Reasons, Uncertainty and Legal Theory,” supra, note 6, 922–927; Hurd, “Challenging Authority,” supra, note 6, 1667–1675; Heidi M. Hurd, “Justifiably Punishing the Justified,” Michigan Law Review 90 (1992) 2203, 2224. 24 The idiom is used by Raz (Raz, MF, 35–37) following H. L. A. Hart (H. L. A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory [Oxford: Clarendon Press, 1982], 254–255). 25 Raz, MF, 35–37. See Moore, “Authority, Law, and Razian Reasons,” supra, note 6, 853. 26 Raz, PRN, 40, 191. 27 For more general objections leveled against the notion of exclusionary reasons, see Clarke, “Exclusionary Reasons,” supra, note 6; Moore, “Authority, Law, and Razian Reasons,” supra, note 6; Dare, “Raz, Exclusionary Reasons, and Legal Positivism,” supra, note 4, 18–32; Hurd, “Challenging Authority,” supra, note 6, 1623–1625. 28 I use the term “authorities” to denote what Raz terms practical authorities; according to Raz, these are authorities whose utterances are themselves reasons for action, in contrast to theoretical authorities whose utterances as such merely provide reasons to believe in the existence of a certain state of affairs (Raz, PRN, 62).

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(2) The analysis will concentrate on mandatory authoritative directives,29 i.e., directives requiring a

certain action or abstention, imposed by an authority; it will leave aside other types of legal norm,

such as power-conferring norms authorizing the creation of voluntarily incurred legal obligations

(e.g., contractual ones) or the particular norms articulating these obligations.30 (3) The bearing of

authoritative directives on practical reason shall be viewed primarily from the perspective of

subjects of the law, rather than that of legal officials.31

A final stipulation is methodology-related. It is impossible to explore, in the present

confines, the methodological controversies concerning the nature of evaluative judgments bound up

with legal theory.32 It should be noted, however, that the present analysis, if correct, has a claim to

the attention of, among others, those who endorse Razian methodological premises. According to

Raz, his account of authority is meant to single out “important features of people’s conception of

authority.”33 It embraces an explanatory element (explaining conceptions people actually have) but

also an evaluative filter (referring only to important features). Now, in the present essay I shall

point out that where a directive prescribes an act clearly immoral in the extreme, subjects should—

and many of them would—disobey, and I shall argue at length that this is irreconcilable with the

pre-emption thesis. How can this argument be translated into Razian methodological terms? First,

the argument indicates cases where subjects’ actual conduct, and by the same token their true

conceptions,34 may be inconsistent with the pre-emption thesis; second, the argument stresses that

subjects should act (not merely do act) that way, entailing that such conduct reflects important

rather than aberrant attitudes. This comment however is not to suggest that the present analysis is

committed to Razian premises as to the nature of evaluative judgments figuring in jurisprudence.35

With these preliminaries in mind, let us embark on substantive discussion.

29 The term “directives” is purported here to include both utterances whose subject matter and addressees are narrowly defined, and utterances (such as rules) whose subject matter is more general and whose addressees are normally unspecified. 30 I shall also not discuss what Raz calls permissive norms (Raz, PRN, 85–97), though it seems to me that the conclusion reached here is applicable, mutatis mutandis, to that context. For a critical analysis of exclusionary reasons and peremptory force in connection with rights, see Nigel E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights (London: Sweet & Maxwell, 2002), 256–263, 298–304. 31 For Raz the pre-emptive force of the law applies also to courts, though a legal system may allow courts some leeway regarding the application of laws (Joseph Raz, “Postema on Law’s Autonomy and Public Practical Reasons: A Critical Comment,” Legal Theory 4 [1998] 1, 18). 32 See H. L. A. Hart, The Concept of Law, 2d ed. (Oxford: Clarendon Press, 1994), 239–244; Ronald M. Dworkin, “Hart’s Postscript and the Character of Political Philosophy,” Oxford Journal of Legal Studies 24 (2004) 1; John M. Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 3–19; Nigel E. Simmonds, The Decline of Juridical Reason: Doctrine and Theory in the Legal Order (Manchester: Manchester University Press, 1984), 1–16; Simmonds, Central Issues in Jurisprudence, supra, note 30, 191–222; Julie Dickson, “Methodology in Jurisprudence: A Critical Survey,” Legal Theory 10 (2004) 117. 33 Raz, MF, 65–66; Raz, EPD, 193, 236–237. 34 The actual conduct of agents does not always necessarily correspond with their conceptions. Conceivably, due to different kinds of human error agents can make as well as weakness of the will, they might act in a way which deviates from what is really entailed by their bedrock-level normative conceptions. However, these are typically not the circumstances in the cases which will be discussed here. 35 Inasmuch as one holds that legal theory must engage in moral evaluations concerning the justification of law, the scope of the duty to obey, etc., one is likely to take Raz’s “evaluative filter” as implicating similar evaluations. By

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I. POSING THE CHALLENGE AND DELIMITING THE POSSIBLE REJOINDERS

A. The Challenge Set Out: Situations 1 and 2

I shall call the first category of test cases Situation 1. Under Situation 1, a subject of the law

is faced with a directive (issued by a state official or institution36) that is clearly immoral in the

extreme.37 Assume that the immorality involved is so grave that it decisively requires disobeying

the directive, prevailing over any other consideration for obedience (if any such consideration is

present). For instance, a directive to take the life of an innocent person would be, at least in usual

circumstances, an extremely immoral directive, and thus may well give rise to a Situation 1.38

Laboring our imagination much further is not necessary, as the history of mankind, and particularly

that of the last century, furnishes myriad examples of Situation 1. Now, in Situation 1 subjects

should not, and it seems that many of them would not,39 obey the directive. In so doing, subjects

would act for moral reasons (for Raz, first-order reasons) pertaining to the conduct they are being

told to engage in, and this is what they ought to do.40

That a subject ought to disobey in such an extreme situation is uncontroversial among legal

philosophers,41 though further concomitant questions are moot: e.g., some hold that a gravely

iniquitous directive cannot be a law in the appropriate sense of the word42 or that it is, at best, a

contrast, Julie Dickson proposes that Razian legal theory should be seen as “evaluative-but-not-morally-evaluative” (Julie Dickson, Evaluation and Legal Theory [Oxford: Hart, 2001], 29–69; Dickson, “Methodology in Jurisprudence,” supra, note 32, 125). 36 At this stage I leave open the question of whether that official or institution exercises authoritative power, generally or according to Raz’s conditions of authoritativeness. I elaborate on this issue in Section II. 37 The definition of Situation 1 does not presuppose any specific theory of ethics. Moreover, the qualified formulation of Situation 1 suggests that directives it takes in are such that would likely be regarded as intolerable according to a variety of ethical approaches. 38 This conforms to a wide range of ethical approaches. Even those who hold that in principle such an act may be justified under some circumstances on the footing that it induces greater overall gain than loss are likely to confine this conviction to very special circumstances. 39 It is not likely that all subjects would disobey in these cases, nor that in every political culture, in all conditions, and however intensely coerced, the bulk of them would actively resist or refuse to cooperate with such acts. Note in this regard Stanley Milgram’s well-known behavioral study concerning obedience to authority (Stanley Milgram, Obedience to Authority: An Experimental View [London: Tavistock, 1974]). See also Herbert C. Kelman and V. Lee Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility (New Haven, CT: Yale University Press, 1989). 40 In such cases, even where some superior positive law that defeats the directive is in force, it seems plausible and desirable that disobedience would be motivated, at least in part, by moral reasons. At any rate, as will become apparent, the most interesting questions for our purpose arise when we assume that no positive law that can defeat the directive is in force. In these cases subjects must act on moral reasons. 41 See for example Hart, The Concept of Law, supra, note 32, 200–212; Rawls, A Theory of Justice, supra, note 18, 308–343; Ronald M. Dworkin, Taking Rights Seriously (London: Duckworth, 1978), 192–193; John L. Mackie, “Obligations to Obey the Law,” Virginia Law Review 67 (1981) 143, 152; Finnis, Natural Law and Natural Rights, supra, note 32, 350–366; Kent Greenawalt, Conflicts of Law and Morality (New York: Oxford University Press, 1987),186–192, 220–223; William A. Edmundson, Three Anarchical Fallacies (Cambridge: Cambridge University Press, 1998), 8–12. Raz, I think, would agree with this; see, for instance, the quotation below (text accompanying n. 54) regarding his example of a soldier under his superiors’ command. (See further his essay on civil disobedience, in Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979), 262–275). In what follows, I investigate whether this is consistent with his pre-emption thesis. 42 Thomas Aquinas, Summa Theologiae, 1-2, q. 96, a. 4. See further Finnis, Natural Law and Natural Rights, supra, note 32, 363–366.

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“lawless law,”43 while others maintain that it may properly be called a law, but they agree that it

ought to be contravened on moral grounds.44 Regardless of those contested questions, Situation 1

refers to the common ground that a subject ought not to follow such a directive, which is the only

ground requisite at this stage of the analysis.45

The second category of test cases shall be titled Situation 2. In Situation 2, a subject of the

law faces a legal rule, not in itself reprehensible,46 in special circumstances under which following

that rule would clearly induce an extremely wrong outcome. Again, the wrongness involved is so

grave that it prevails over any other present consideration and demands that the rule be contravened.

Consider the following modification to the example of John given earlier:47 while John drives his

car he suddenly stumbles on an injured person lying on the pavement (this person, let us say, was

attacked a while ago by a band of muggers). Suppose that, owing to the fact that the injury is a

critical one, all things considered, the only effective way John can save that person’s life is by

rushing him to the hospital, speeding up in excess of the legal speed limit. Indeed, John lays this

person in the car and drives to the hospital exceeding the speed limit. Also assume that in the

relevant jurisdiction there exist no positive legal provisions (legislation or case-law), such as the

Good Samaritan obligation or general defenses of necessity or emergency, that may apply to the

case. Situation 2, then, is another situation where subjects should not, and it seems that a significant

segment of them would not, obey the rule. In so doing subjects act for moral reasons germane to the

situation in question, again, as they should do.

The phenomenon instantiated in Situation 2 is well known in jurisprudential scholarship.48 It

is often explained as the aftermath of inherent features of the law, such as its generality49 and

43 Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law (1946),” Oxford Journal of Legal Studies 26 (2006) 1; Gustav Radbruch, “Five Minutes of Legal Philosophy (1945),” Oxford Journal of Legal Studies 26 (2006) 13. See further Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (Oxford: Clarendon Press, 2002), 28–81. 44 Hart, The Concept of Law, supra, note 32, 200–212. Schauer states that: “positivist theory allows the citizen to refuse to obey morally reprehensible laws.” (Schauer, Playing by the Rules, supra, note 6, 200). 45 In Section II, I take up the questions of whether such a directive is necessarily not authoritative; on the basis of what criteria this can be established, and what implications those criteria have for the pre-emption thesis. 46 It may well be that usually subjects conform better to underlying reasons by following that rule (text accompanying nn. 66–67). 47 Text accompanying n. 11. 48 See for example Greenawalt, Conflicts of Law and Morality, supra, note 41, 191–192; Schauer, Playing by the Rules, supra, note 6, 25–37, 47–52, 88–93, 118, 128–134; Larry Alexander, “The Gap,” Harvard Journal of Law and Public Policy 14 (1991) 695; Edmundson, Three Anarchical Fallacies, supra, note 41, 9–10. Raz also seems to acknowledge the possibility of these situations: “The question of a validity of a norm should be clearly distinguished from other questions of justification. A norm may be valid and yet a norm subject may not be justified in performing the norm act in certain circumstances, for there may be present in these circumstances some other conflicting reasons not excluded by the norm which should prevail” (Raz, PRN, 80). The proviso: “not excluded by the norm” will be considered in Section III. 49 As Aristotle puts it, “all law is universal but about some things it is not possible to make a universal statement which shall be correct” (Aristotle, Nicomachean Ethics, trans. Terence Irwin [Indianapolis: Hackett Publishing Company, 1985], Book v, Ch. 10, p. 144). On generality as a requisite feature of the law, see Lon L. Fuller, The Morality of Law, 2d ed. (New Haven: Yale University Press, 1969), 33–38, 46–49.

10

prospective application:50 legal rules are meant to apply to a multiplicity of situations and people,

and thus are normally formulated in a general manner; while legal rules are issued at a given point

in time to provide for the future, rule-issuers are not supposed to (and cannot) envisage all relevant

future contingencies. Owing to these and other factors, particular situations of a rule-failure, i.e.,

situations where following the rule would amount to grave injustice or absurdity, are bound to arise.

Do Situations 1 and 2 contradict the pre-emption thesis? My answer to this would be yes.

However, one who endorses the pre-emption thesis may suggest that these situations do not embody

counter-examples to it, on the basis of either of the following propositions:51 first, the thesis is

simply not applicable in these situations since the directives in question are not authoritative

(hereafter: the no-authority reply); second, assuming that the pre-emption thesis is applicable in

these situations, the reasons for which subjects defy, and ought to defy, the directives in question

are outside the scope of reasons that are purported to be excluded (hereafter: the scope-of-exclusion

reply). These replies will be taken up, in turn, in Sections II and III.

Prior to further discussion, it is worth emphasizing that Situations 1 and 2 do not encompass

every case where an act prescribed by a directive is less than optimal or even morally wrong. Both

according to the pre-emption thesis and according to the weight-conception it may well be that

subjects ought to follow directives in some such cases. From a weight-conception perspective, as

noted earlier, one may seek to explicate this by various (content-independent) reasons to obey the

law, which are likely to outweigh a minor or moderate deficiency of a certain directive. Such cases,

therefore, are unrevealing for our purpose. Situations 1 and 2 are different: they are situations in

which it is evident that the wrongness of following the directive is of overwhelming magnitude,52

rendering disobedience warranted.53

50 See Fuller, The Morality of Law, supra, note 49, 51–62. 51 On one occasion, Raz states in a footnote that “if for some reason the conflict between the exclusionary reason and the first-order reason is not a partial one but a head-on collision” the conflict resolution will turn on the respective weight of these reasons (Raz, “Facing Up,” supra, note 6, 1168). I am not certain how broadly he intends this statement to apply; does he mean that whenever subjects encounter a directive that fails to reflect the relevant background reasons (as in Situations 1 and 2, but also in other situations), they should act on the balance of reasons rather than obey the directive? If so, the notion of legal exclusionary force becomes an extremely emaciated notion, incongruent with the one emerging from the rest of Raz’s writing. 52 The wrongness of following the directive is, ex hypothesi, also a clear wrongness. I take up potential doubts that revolve around this issue in Section IV. 53 This is not to suggest that, generally or from a Razian perspective, disobedience might be warranted only in these cases. There may be circumstances where a directive-issuer fails to meet the conditions for obtaining authority, and therefore his directives should not be obeyed, although some of these directives are not unjust (Raz, MF, 78).

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B. Usual and Unusual Cases

Moving on to examine how Situations 1 and 2 bear on the pre-emption thesis, one may

notice that these situations are rather unusual ones. This might bring into discussion comments of

Raz, in which he qualifies the claim of exclusionary force with regard to some unusual cases. For

instance, when discussing an example regarding a soldier who treats his superiors’ commands as

exclusionary reasons, Raz notes: “[the soldier] admits that if he were ordered to commit an

atrocity he should refuse. But his is an ordinary case, he thinks, and the order should prevail”54

(i.e., it should prevail regardless of the balance of first-order reasons). One might get the

impression, then, that Raz would respond to Situations 1 and 2 simply by asserting that, even if

we acknowledge that in these cases subjects act on background reasons, these are unusual cases

and thus cast no doubt on the pre-emption thesis’s validity as an explanation of the vast majority

of cases.

However, it seems that we should not take Raz to be advancing the preceding argument,

at least not as a self-contained argument. Rather, he appears to found the distinction between

ordinary and exceptional cases on some criteria that would strive to explain exceptional cases,

such as Situations 1 and 2, as cases that fall either under the no-authority reply or under the

scope-of-exclusion reply. These replies should be read into Raz’s remark quoted above for the

following reasons. First, although at some points, such as the foregoing quotation, Raz does not

explicitly mention the issues of lack of authority or scope of exclusion, nonetheless, at several

other points, where he distinguishes between ordinary and exceptional cases, he does so expressly

on the grounds of authoritativeness conditions or the scope of exclusion.55 It is likely, then, that

the same reasoning is tacitly presupposed by comments such as the above. Second, a different

rendering of Raz would be unsound: it would clearly be insufficient to say, regarding cases where

subjects act on background reasons, that these cases are exceptional without further explaining

why and in what respects they are exceptional. Obviously, one cannot defend a theory merely by

asserting that instances incompatible with it are exceptional ones, unless one is able to point at a

relevant difference to that effect. Even legal theories that overtly adopt a methodology that

distinguishes between central cases and peripheral cases do not pick and choose cases ad hoc.56

Instead, they draw distinctions based on relevant criteria, thus “one’s account of the other [i.e.,

peripheral] instances can trace the network of similarities and differences, the analogies and

54 Raz, PRN, 38. See also ibid., 79, 80. 55 Raz, MF, 46, 62, 78; Raz, PRN, 77, 79, 80. 56 Finnis, Natural Law and Natural Rights, supra, note 32, 11.

12

disanalogies, for example, of form, function, or content, between them and the central cases.”57 In

light of the above, it is far more plausible that Raz has in mind certain criteria on the grounds of

which exceptional cases can be differentiated from ordinary ones, even where he is not explicit

about it. In our context, it seems that the only possible ways to establish such differentiation

would be either through the no-authority reply or through the scope-of-exclusion reply.

These constraints on our discussion also emerge from the dialogue articulated earlier on.58

The very point of a proposition that reasons of a certain type (any type) exclude reasons of

another type is that the former surmount the latter regardless of their relative weight. In this

sense, exclusion is a conclusive concept; whenever the conditions for its application obtain, i.e.,

whenever there is a conflict between purportedly exclusionary reasons and purportedly excluded

reasons, the former must triumph over the latter.59 It is this conclusive character of the thesis

under discussion that dictates the way to meet the challenge posed here: if one suspects that in a

certain case purportedly exclusionary reasons are defeated by purportedly excluded reasons, and

if there is no debate over what an agent ought to do in this case, the only way to dispel such

doubts is either by explaining why the former are not to be taken as exclusionary reasons or by

explaining why the latter are not to be taken as excluded ones. Any number of instances, however

rare or unusual, in which the foregoing cannot be established, would make the case against the

exclusion claim.60 In fact, insofar as one concurs that generally there are some good reasons for

obeying legal directives, one can only expect that if there exist cases where legal directives ought

to be disobeyed, these will be unusual ones; for these cases must be such that they involve

reasons for disobedience that are even weightier than the reasons we have for obedience. Having

delimited the possible replies to our challenge, let us proceed to explore the first of them: the no-

authority reply.

57 Ibid., 10–11. 58 Text following n. 21. 59 There is a different sense in which it is not claimed by Raz that exclusionary reasons must be absolute nor conclusive (Raz, PRN, 27–28), as he accepts that they might be cancelled by certain conditions or overridden by reasons outside their scope of exclusion or by other second-order reasons. My analysis takes these provisions into account, and therefore searches for a counter-example in the form of a case in which purportedly (valid) exclusionary reasons are overridden by first-order reasons that are supposed to be within the scope of exclusion. 60 Similarly, the principle expressed in the above dialogue entails that other arguments attempting to evince weaknesses of the weight-conception or an appeal the pre-emption thesis may have (e.g., Raz’s arguments from subjects’ psychological phenomenology [ibid., 40–45, 74–76]) are not objections to the present thesis, unless they are able to accommodate the recalcitrant cases pointed out here, i.e., Situations 1 and 2. (For critiques of Raz’s phenomenological arguments, see Flathman, The Practice of Political Authority, supra, note 6, 110–112; Gans, “Mandatory Rules and Exclusionary Reasons,” supra, note 6, 387–390; Dare, “Raz, Exclusionary Reasons, and Legal Positivism,” supra, note 4, 27–28; Moore, “Authority, Law, and Razian Reasons,” supra, note 6, 860–863; Schauer, Playing by the Rules, supra, note 6, 91. See also Raz, “Facing Up,” supra, note 6, 1164–1165).

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II. LACK OF AUTHORITY

The no-authority reply contends that the directives in Situations 1 and 2 are not authoritative

ones, and thus the pre-emption thesis is not to be taken to apply in these situations. In this Section, I

show that authoritativeness cannot be ruled out under Situations 1 and 2, at least not on the basis of

conditions for authoritativeness that are compatible with the pre-emption thesis. With respect to

Situation 1 I elaborate particularly on the authoritativeness condition set forth by Raz’s “normal

justification thesis,” probing whether this condition can be met under Situation 1. The answer, as we

shall see, depends on further questions regarding the way in which the normal justification thesis is

meant to apply. I articulate three different possible ways to conceive of the normal justification thesis

in that respect. I argue that Raz endorses one of these three understandings, and that his position

departs widely from the other two. I then show that, given Raz’s characterizations of the normal

justification thesis, it is possible that a directive-issuer in Situation 1 would comply with that thesis;

thus, authoritativeness cannot be precluded in Situation 1 on the footing of the normal justification

thesis.

On what grounds can the no-authority reply claim that directives in Situations 1 and 2 are not

authoritative ones? To start with, it is conspicuous that the no-authority reply may not establish that a

certain directive is not authoritative on grounds that the directive’s content is objectionable, i.e.,

contravenes or fails to reflect the relevant underlying reasons. For it would be self-contradictory and

meaningless to suggest that a directive, if authoritative, excludes its underlying reasons, and at the

same time to concede that what determines whether a directive is authoritative, and thus excludes its

underlying reasons, is its conformity with these underlying reasons.61 To be successful, then, the no-

authority reply must use some other conditions of authoritativeness as its fulcrum. We may indeed

find in Raz some such other conditions of authoritativeness.

61 See related comments in: Dworkin, “Thirty Years On,” supra, note 4, 1672; Mian, “The Curious Case of Exclusionary Reasons,” supra, note 6, 105–106. This problem cannot be dismissed by saying that the grounds for challenging the authoritativeness of a directive is not that it is wrong but rather that it is extremely wrong. First and foremost, the difference between wrongness and extreme wrongness, at least in some cases, represents a difference in degree; underlying reasons, which are alleged to be excluded, still enter the balance that determines whether the wrongness involved is of excessive degree (this will be demonstrated in text accompanying nn. 116–118). So the foregoing argument is still self-undermining. Second, on the Razian understanding, the pre-emptive force of authoritative law is grounded in some reasons, e.g., that the authority is in a better position to decide, that its judgment is more reliable, etc. (Raz, MF, 41–59; Raz, EPD, 214–215; Raz, PRN, 193–195; Joseph Raz, “Reasoning with Rules,” Current Legal Problems 54 [2001] 1, 15). The pre-emption thesis is applicable only when these reasons obtain. But, precisely the same reasons will tilt the balance in favor of following the law if we assume the weight-conception, so that this conception will require following the law unless it strikes us as wrong to a sufficiently high degree, and not just wrong. Thus, we may suspect that imposing on the pre-emption thesis a qualification to the effect that extremely wrong directives are, as such, not binding, will threaten to drive the pre-emption thesis to indistinctiveness from the weight-conception. Were this the only relevant difficulty with the foregoing argument, we would probably invoke the principle known as Ockham’s razor, which bans multiplying theoretical entities beyond necessity, and which would hence favor the weight-conception (for a similar difficulty see n. 176 and accompanying text). But we need not call upon Ockham’s razor, since the first difficulty mentioned above suffices to rule out the above argument.

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A. The Service Conception of Authority

Raz’s “service conception of authority” lays down conditions of authoritativeness that

appear to be distinct from a content-based evaluation of directives on their merits, and thus may be

suitable to uphold the no-authority reply. On this conception, an alleged authority must meet two

conditions in order to acquire legitimate authority: (1) chiefly, that subjects are more likely to

conform to (background) reasons applying to them if they follow the directives of that alleged

authority, rather than trying to follow their own judgment on the merits (Raz terms this condition

the normal justification thesis);62 (2) even where the normal justification thesis is complied with,

the matter being regulated must be one in which it is more important to act in conformity with

reason than to decide for oneself how to act (Raz terms this condition the independence

condition).63 This condition would not be met in certain domains characterized by special intrinsic

desirability that people would follow their own light, e.g., in the case of one’s choosing of one’s

friends and partner.64 In the framework of Raz’s service conception, therefore, lack of authority is

attributable to noncompliance either with the normal justification thesis or with the independence

condition. I shall accept the service conception arguendo, and will examine the no-authority reply

on this basis.65

It is easy to discern that Situations 1 and 2 may occur where the independence condition

obtains. That is, if we assume with Raz that there exist distinct domains where it is more important

to decide for oneself than to conform to reason and distinct domains where it is more important to

conform to reason than to decide for oneself, it is clear that Situations 1 and 2 may come about

also in the latter type of domain. For instance, an order to take the life of an innocent person (most

likely a Situation 1) surely can figure in some domains—e.g., in a military operational context—

that are not characterized by the special intrinsic desirability of individual self-governance referred

to by the independence condition. The same applies to Situation 2. For example, a person may be

justified in driving in excess of the legal speed limit, if it is necessary in order to save an injured

person’s life, while this may certainly come about in a context not in any special way marked by

intrinsic desirability of individual self-governance. This being so, the analysis in this Subsection

62 Raz, MF, 53. 63 Raz, “The Problem of Authority,” supra, note 11, 1014. 64 Raz, MF, 57. 65 Raz’s dependence thesis (to be distinguished from his “independence condition” discussed above) contends that “all authoritative directives should be based on reasons which already independently apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directive” (ibid., 47). As will be explained below (text accompanying nn. 107–116) Raz does not treat compliance with the dependence thesis regarding a given directive as a condition for its authoritativeness (ibid., 38, 47, 55). Rather, this thesis only represents a standard of “an ideal exercise of authority” (ibid., 47). Yet, to comply with the normal justification thesis, one would probably need to accomplish at least a fairly good degree of compliance with the dependence thesis in most cases (see ibid., 55).

15

will concentrate on the first condition of authoritativeness mentioned above, i.e., the normal

justification thesis.

Is it necessarily the case that a directive-issuer under Situations 1 and 2 would not comply

with the normal justification thesis? Let us begin with the easier situation in this regard: Situation

2. In Situation 2, while following the rule would be an exceptionally wrong thing to do in view of

the special circumstances, the rule itself is not reprehensible. It may well be (though it is not

necessary) that in run-of-the-mill cases subjects will better conform to reasons applying to them by

following that rule, and similarly it is possible that the directive-issuer’s skills are such that by

usually following his directives subjects are likely to better conform to reasons applying to them.66

Consider once more the case of John.67 John defies the speed limit rule in order to rush a

severely injured person to the hospital. True, the directive-issuer might not be generally more

likely than John to track reasons applying in that context: e.g., we can imagine circumstances

where the directive-issuer is incompetent and uninformed regarding traffic matters, and thus is

incapable of properly matching the speed limit with road conditions; while John might possess a

good deal of knowledge about traffic matters, especially factors applying to the roads in his local

area, and so will do better by following his own judgment in this respect. However, the case may

well be different. Possibly, John does better, in run-of-the-mill cases, by following the speed limit

rule, which may be an excellent rule yielding overall desirable results, such as the diminution of

the number of road accidents. At any rate, it is possible that the skills possessed by the directive-

issuer and by John, respectively, are such that the latter is more likely to conform to reason by

usually following the instructions of the former in the context of road traffic. Thus, the speed limit

rule may definitely be authoritative according to the service conception of authority. And yet,

under the injured man’s circumstances, John is justified in defying that rule.

The foregoing observation suffices for our purpose. Note, however, that even where the

normal justification thesis is not met in Situation 2, we do not expect that this would be the only or

the dominant reason why subjects defy the rule in such cases. We do not expect, for example, that

John’s decision to exceed the speed limit in order to bring a severely injured person to the hospital

would turn exclusively or chiefly on calculations of whether, in general, the directive-issuer

possesses such skills that his road traffic directives are likely to lead John to better conformity with

reason, or even whether the speed limit rule itself is generally desirable. Indeed, it would seem odd

if his decision were determined by these factors. Instead, we expect John to defy the speed limit

rule primarily because of the compelling importance of saving the injured person’s life. This lends

66 I discuss below three possible understandings of the normal justification condition, suggesting that only one of them is endorsed by Raz. The above claim holds good under any of these three understandings. 67 Text accompanying n. 47.

16

further support to the thought that noncompliance with the normal justification thesis, while it may

or may not occur under Situation 2, is by no means the mark of Situation 2. That is, it fails to

capture the reasons for which subjects should defy a rule in this situation. Such reasons would be

better accounted for by saying that subjects, in Situation 2, resort to a justification warranting

deviation from the rule, regardless of the rule’s general validity. As Raz acknowledges, problems

of invalidity are to be distinguished from other cases of justification:

The question of the validity of a norm should be clearly distinguished from other questions of justification. A norm may be valid and yet a norm subject may not be justified in performing the norm act in certain circumstances, for there may be present in these circumstances some other conflicting reasons not excluded by the norm which should prevail.68

Whether the notion of unexcluded reasons reconciles Situation 2 with the pre-emption thesis is a

question to be addressed in the next Section. At this stage, our primary observation is that under

Situation 2 a rule ought to be contravened although it may be an authoritative rule according to the

service conception of authority.

What about Situation 1? Is it necessarily the case that a directive-issuer under Situation 1

would not comply with the normal justification thesis? The answer, I shall contend, is negative.

Given Raz’s characterization of the normal justification thesis, it is possible (though surely not

always the case) that a directive-issuer under Situation 1 would comply with the normal

justification thesis. As will be expounded below, whether a given directive-issuer complies with

the normal justification thesis is a matter that will, inter alia, turn on the question at what level of

generality the normal justification thesis is intended to apply. The normal justification thesis refers

to the likelihood that, by following an authority, subjects would better conform to reasons already

applying to them. Raz stresses that this should be tested on an individual basis, i.e., with each

person afresh taking into account his knowledge, understanding, skills, strength of will, etc.69 This

nonetheless leaves some questions regarding the level of generality at which the test is wielded. I

shall stipulate three possible understandings in this regard, and I shall argue that Raz endorses the

third one. The three understandings are as follows:70

1. The test of whether an authority is likely to improve conformity with reasons should be

applied separately in respect of each legal directive, referring to the likelihood that an individual

68 Raz, PRN, 80. 69 Raz, MF, 73–74, 77–78, 104; Raz, EPD, 341, 347, 350. Yet, he agrees that in the case of some legal rules the obligation to obey is likely to apply equally to all citizens (ibid., 341, 350). 70 The following are not exhaustive of all possible ways to conceive of the normal justification condition. Emran Mian (Mian, “The Curious Case of Exclusionary Reasons,” supra, note 6) notes that “[i]t is possible to think of normal justification in terms of individual rules in particular encounters, and… in an aggregated sense, that is, across the lifetime of a rule or across a system or sector of rules” (105). The first possibility Mian mentions is not discussed here, as I assume that the normal justification is tested in the long term. The second possibility he points out envelops three different alternatives (a rule/a system/sector of rules) correlating with the three understandings discussed here.

17

would conform better to the reasons underlying that particular directive by following it (hereafter:

the discrete-directives approach).

2. The test should be applied with reference to the entire legal system. That is, it should

refer to the likelihood that, by following all legal directives of a legal system, an individual would

conform better to the entire range of reasons that apply to him and that are relevant to any directive

of the legal system, on the balance of things, i.e., conformity with reasons in the case of some

directives that outweighs non-conformity in the case of others (hereafter: the cumulative

approach).

3. The way to view the test lies in between the foregoing two approaches. While the test

should not examine each particular directive in isolation, it is flexible enough to take account of

variations in the degree of competence possessed by the directive-issuer and the subject,

respectively, in various legal contexts. Given such variations, the test will refer to the likelihood

that an individual would conform better to reasons germane to the context concerned by following

all legal directives in that context. Directives may be contextually classified for this purpose

according to their function and/or according to the domain they regulate, e.g., environmental

issues, safety measures in workplaces, financial issues, national defense, etc. (hereafter: the

contextual approach).

It would be useful first to illustrate succinctly how the difference between these three

approaches bears on whether a directive-issuer in Situation 1 can comply with the normal

justification thesis. If we apply the discrete-directives approach it appears impossible that a

directive-issuer in Situation 1 would meet the requirement set by the normal justification thesis.

For, by following an extremely immoral directive, subjects would not better conform to the

reasons relevant to their acts in the circumstances covered by that directive. If, on the other hand,

we espouse the cumulative approach it is possible that a directive-issuer in Situation 1 would

comply with the normal justification thesis, if the immoral directive concerned is an exception,

while on the whole by following his directives subjects are better likely to conform to the entire

array of reasons applying to them. Finally, if we adopt the contextual approach, it is also possible

that the directive-issuer under Situation 1 would meet the condition laid down by the normal

justification thesis. This will be the case if, despite the one deficient directive in question, his

directives in the legal context concerned are, for the most part, such that lead subjects to better

conformity with the reasons applying to them in that context. For instance, a directive-issuer may

be sufficiently skilled and well-informed regarding matters of national defense (as well as having

the moral competence required in this context) and yet on a specific occasion might fail, and issue

a wrong directive related to that very context.

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True, an incident of an extremely wrong directive may, inter alia, be a result of

incompetence of the alleged authority generally or with respect to the relevant context. Yet, local

instances of a radically wrong directive resulting from a specific moral failure, misjudgment,

human or technical error, a breakdown in communication between officials, etc., may occur even

where the authority is generally competent.71 This need not be the case and perhaps is even not

likely to be the case, but it is possible. Therefore, it seems that under the cumulative approach or

the contextual approach, the possibility that the normal justification thesis will be complied with in

Situation 1 cannot be precluded. I shall return to examine the implications of the generality of the

normal justification thesis in further detail. But let us first discuss Raz’s position regarding the

three approaches. At one juncture Raz adverts directly to the generality of the normal justification

thesis:

On the one hand generality is built into the account: the normal justification of authority is that following it will enable its subjects better to conform with reason. One cannot establish that this is the case in one case without establishing that it is the case in all like cases. Authority is based on reason and reasons are general, therefore authority is essentially general.

On the other hand the thesis allows maximum flexibility in determining the scope of authority. It all depends on the person over whom authority is supposed to be exercised: his knowledge, strength of will, his reliability in various aspects of life, and on the government in question.72

This remark seems to draw near the contextual approach. While pointing out the generality of the

normal justification thesis, Raz stresses that the thesis depends on factors like the subject’s

individual knowledge and reliability in various aspects of life, and by this he endows it with a

contextual character. This is especially so since we know that in reality individuals’ skills usually

vary from one domain to another. While some people are particularly skilled, for example, in

matters of education, others would be remarkably apt in everything that has to do with mechanics.

These inferences, which point to the contextual approach, find some corroboration in further

comments of Raz:

Of course sometimes I do have additional information showing that the authority is better than me in some areas and not in others. This may be sufficient to show that it lacks authority over me in those other areas.73

[T]he extent of the duty to obey the law in a relatively just country varies from person to person and from one range of cases to another.74

71 If one disagrees with this, I suspect that one’s notion of “general competence” is not really general, and that one’s approach is in effect reducible to the discrete-directives approach. 72 Raz, MF, 73. 73 Ibid., 68–69. 74 Raz, EPD, 341, 350.

19

Raz, therefore, allows differentiation between areas or ranges of cases to which rules apply. He

mentions various ways of classifying rules, e.g., according to their function or the domain of

human activity they regulate.75 Thus, for example, “[a]n expert pharmacologist may not be subject

to the authority of the government in matters of the safety of drugs”76 if in this context he is better

likely to succeed by following his own judgments and disregarding the directives of the

government.

It becomes transparent, then, that Raz’s position may sit comfortably with the contextual

approach. Now, how distinct and distant is Raz’s approach from the cumulative approach? Very

much so, I suspect. The cumulative approach appears to be at sharp variance with Raz’s piecemeal

conception of the scope of legitimacy of governmental authorities.77 His conception in this regard

is piecemeal in two closely related ways, mentioned above:78 first, in the sense that it discriminates

between distinct contexts of legislation; and second, in the sense that it admits differentiation

between individuals,79 allowing “considerable variations in the extent of governmental authority

over the population over which it claims authority.”80 In contrast, the cumulative approach is, first,

unreceptive to discrimination of contexts, and in this sense it views the question of whether or not

a government obtains authority as an “all-or-nothing” question. If, by following the law, a subject

would better conform to the entire assortment of reasons applying to him, in the cumulative sense,

i.e., conformity with reasons in the case of some legal directives that outweighs non-conformity in

the case of others, then the government attains authority over him in all legal contexts. Second, the

cumulative approach, since it treats the question as an all-or-nothing question, is more prone to

yield the corollary that a reasonably just de facto authority will acquire legitimate authority to a

broad and invariable extent over at least a large segment of the population. For it seems sensible to

suppose that the regulation of society by a nearly just authority introduces some vital overall gains

to individuals’ lives.81 From a subject’s point of view, even if in his own area of expertise (or,

more rarely, areas of expertise) he is in a better position to decide than the authority is, this fact is

likely to be outweighed, on the balance of things, by the overall gains the authority brings into his

life (if indeed these factors are weighed against one another, as they are under the cumulative

approach). Therefore, if one presupposes the cumulative approach, adopting an all-or-nothing test,

75 Ibid., 341, 347–350; Raz, MF, 74. 76 Raz, MF, 74. See also ibid., 77–78. 77 Raz, MF, 70, 74, 80, 99–100, 104; Raz, EPD, 347, 350. 78 Text accompanying nn. 69, 72–76. Authorities, for Raz, are “relational both regarding who has to take an authority’s word as authoritative, and regarding what matters” (Raz, “The Problem of Authority,” supra, note 11, 1033–1034). 79 n. 69. 80 Raz, “The Problem of Authority,” supra, note 11, 1029. 81 This may be so, in part, by virtue of basic functions of authorities, such as the facilitation of co-ordination, advancement of certainty, dispute resolution, etc.

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one does not seem to have a reason to endorse so qualified an approach to the scope of legitimacy

of governmental authorities as Raz’s.

At the justificatory level, the cumulative approach may seek validation from the notion that

law’s normative force depends, to a considerable measure, on its systematic nature, i.e., its overall

functioning as a legal system. This important feature of the law, one may hold, would be lost

through contextual variations of the normative force different legal directives have (i.e., the

normative force they have qua legal directives). This notion conforms to John Finnis’s “seamless

web” argument:

The law presents itself as a seamless web. Its subjects are not permitted to pick and choose among the law’s prescriptions and stipulations. It links together, in a privileged way, all the persons, and all the transactions.…82

On this view, a subject (call her Sarah) may well have reasons to obey laws she deems wrong or

laws imposing burdens to which she has no intrinsic relation. Such reasons are partly embedded in

an assumption that the bulk of her fellows obey (and if not, are coerced to obey) laws, including

laws they deem wrong or laws imposing burdens to which they have no intrinsic relation, but

which secure goods essential to Sarah.83 To demonstrate, a manufacturer may have reasons to

obey the law, and thus, let us say, not to pollute a river that goes by her factory, even if she objects

to anti-pollution regulations; these reasons include her recognition that the law fulfils some

essential functions such as protecting her factory from trespassers, enforcing her contractual

rights, etc.84 (This line of thought is consistent with the fact that there are other (moral) reasons, of

much greater gravity, to do or avoid doing what certain laws respectively prescribe or proscribe,

e.g., a legal prohibition of murder). From the “seamless web” perspective, the law’s quality of

solving co-ordination problems in society is conceived of broadly, as having signification

extending beyond the scope of particular discrete directives or classes of directives and lying also

in the relation between people’s conduct under different directives across a legal system.85

Were this sort of emphasis on the systematic nature of law endorsed by Raz, he would

probably be inclined towards the more holistic understanding of the normal justification thesis,

i.e., the cumulative approach rather than the contextual one. In fact, however, Raz envisages a

much patchier image of the normative force of the law and a narrower notion of co-ordination.86

82 John M. Finnis, “The Authority of Law in the Predicament of Contemporary Social Theory,” Notre Dame Journal of Law Ethics and Public Policy 1 (1984) 115, 120; John M. Finnis, “Law as Co-Ordination,” Ratio Juris 2 (1989) 97, 101. Finnis here refers directly to what the law “claims” to be, but indirectly also, I think, to what the normative force of central-case legal systems (presumptively) is. 83 Finnis, “The Authority of Law,” supra, note 82, 120; Finnis, “Law as Co-Ordination,” supra, note 82, 100–103. 84 Finnis, “The Authority of Law,” supra, note 82, 119. 85 Ibid., 135–136; Finnis, “Law as Co-Ordination,” supra, note 82, 100–103. 86 Yet, the notion of co-ordination that both Raz and Finnis refer to is broader than that which is commonly used in game theory (Raz, “Facing Up,” supra, note 6, 1189–1194; Finnis, “The Authority of Law,” supra, note 82, 124–133; Finnis, “Law as Co-Ordination,” supra, note 82, 97–100). Moreover, Raz does stress the centrality and primacy of the

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In an essay which is, in part, a reply to Finnis’s “seamless web” argument, he notes that cases

where co-ordination of a large number of people is required, “[a]lthough central to the normal

functioning of the law, …cannot be generalized to generate an obligation to obey the law of a

relatively just state,” inter alia, since “not all laws purport to fulfill such a function.”87 This is yet

another confirmation of the stark difference between Raz’s understanding of his normal

justification thesis and the cumulative understanding of it.

If Raz’s position bears some resemblance to the contextual approach and is far removed

from the cumulative approach, it remains to consider his stance towards the discrete-directives

approach. Despite its contextual appearance, Raz’s position could conceivably have been

compatible with the discrete-directives approach. This would have been the case, had he approved

contextual classifications so specific that a context, in the relevant sense, might be as narrow as the

scope of one discrete directive. This idea can be cast in a slightly different form, by drawing on

Raz’s own terms. Raz notes that:

a person or body has authority regarding any domain if that person or body meets the condition regarding that domain and there is no proper part of the domain regarding which the person or body can be known to fail the condition.88

Suppose that one discrete directive could count as “a proper part of a domain” in the sense used by

Raz above. This would entail that any single directive that fails to improve subjects’ conformity

with background reasons is not authoritatively binding, which is the equivalent of the discrete-

directives approach.

But, in fact, the discrete-directives approach runs afoul of Raz’s conception of authority, as

his remarks in several places convey:

Authority is legitimate only where conformity with reason is better and more securely assured by following authority than by acting on one’s own. This is consistent with the fact that conformity to the authority’s demand may be, on occasion though not in general, sub-optimific. For example, on occasion it may fail to reflect correctly the underlying reasons which it is meant to reflect.89

An authority is justified, according to the normal justification thesis, if it is more likely than its subjects to act correctly for the right reasons. That is how the subjects’ reasons figure in the justification, both when they are correctly reflected in a particular directive and when they are not. If every time a directive is mistaken, i.e. every time it fails to reflect reason correctly, it were open to challenge as mistaken, the advantage gained by accepting the authority as a more reliable and successful guide to right reason would disappear.90

propensity to facilitate co-ordination in his normal justification thesis (Raz, “Facing Up,” supra, note 6, 1164, 1180; Raz, MF, 56; Raz, EPD, 341, 349). 87 Raz, EPD, 349. 88 Raz, “The Problem of Authority,” supra, note 11, 1027. 89 Raz, “Facing Up,” supra, note 6, 1161. 90 Raz, MF, 61.

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[S]ometimes immoral or unjust laws may be authoritatively binding, at least on some people. The existence of the occasional bad law enacted by a just government does not by itself establish much. However just a government may be, it is liable to pass undesirable and morally objectionable laws from time to time… Even so it may be that regarding each individual, he is less likely successfully to follow right reasons which apply to him anyway if left to himself than if he always obeys the directives of a just government including those which are morally reprehensible.91

Raz, therefore, categorically renounces the discrete-directives approach. For on the discrete-

directives approach the content of each and every directive can be looked at separately and is open

to challenge, so that if a particular directive is found to be mistaken, i.e., failing to reflect correctly

underlying reasons, it will be discarded. If this approach were espoused, according to Raz, “the

advantage gained by accepting the authority as a more reliable and successful guide to right reason

would disappear.”92 Thus conceived, the normal justification thesis would lose its distinctiveness,

and so would the pre-emption thesis.93

We may now return to view what implications the generality of the normal justification

thesis has for our question. If the contextual approach is adopted and the discrete-directives

approach is rejected, then, as noted earlier,94 we cannot preclude the possibility that under

Situation 1 a directive-issuer would comply with the normal justification thesis. To repeat,

knowledge and skills possessed by an authority, generally or in the relevant context, are conducive

to its likelihood to decide rightly; but they cannot entail or guarantee that in every event directives

it produces would be right. Even where an authority is sufficiently competent, local instances of a

moral failure, misjudgment, human error, a breakdown in communication between officials and so

on, may occur. Raz confirms something similar:

However just a government may be, it is liable to pass undesirable and morally objectionable laws from time to time. This need not be due to any shortcomings in the government. Even assuming complete good will and unimpeachable moral convictions, inefficiency, ignorance and other ordinary facts of life will lead to objectionable laws being passed.95

Conceivably, some such failures may even result in directives that are clearly immoral in the

extreme—which is what we entitled Situation 1. A couple of examples may help to flesh out the

point. First, imagine a country in which some members of a minority group (hereafter: group Z)

are engaged in rebellious activity. As part of this, small teams of rebel-militants initiate from their

area of residence artillery attacks aimed at Army sites in the country. These attacks occasionally

result in some casualties; say, a handful of people have died this way during the few months since 91 Ibid., 78–79. 92 Ibid., 61. 93 See discussion in n. 61. See related comments in Dworkin, “Thirty Years On,” supra, note 4, 1672; Mian, “The Curious Case of Exclusionary Reasons,” supra, note 6, 105–106. 94 Text accompanying n. 71. 95 Raz, MF, 78–79.

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the rebellion started, among them soldiers but, unintentionally, also some citizens living near the

Army sites attacked. Every time the Army locates the sources of the rebels’ fire, the Army uses

artillery to fire at these locations. Each of these Army counter-attacks and their targets has to be

pre-approved by the President, who, by virtue of his office, is also in supreme command of the

Army. Assume that the President possesses, and is known to possess, adequate competence,

generally and in the context of national defense and military matters like the one at stake, such

that he would meet the normal justification condition. Moreover, the President is empowered by a

legislative act, in a broad manner, to issue the aforementioned edicts.

Suppose that on a certain occasion the Army recognizes two rebel-militants taking cover in

a civilian apartment block. These rebels use a small-sized cannon to fire from this block. (The rest

of the rebel-militants keep their distance from civilian members of group Z who are not occupied

in fighting so as not to endanger them.) It is known to the Army that about three hundred civilians

not engaged in fighting live in this block, and therefore it is very likely that an artillery counter-

attack in this case would bring about the death of many, if not all, of these civilians. Other military

alternatives, such as an infantry attack, are assessed to be very difficult and risky as the area

surrounding the relevant block is thick with rebel-militants and fraught with obstacles. The

President is urgently called upon to decide whether and how to react, and he is given the foregoing

information. The atmosphere is highly tense, and he feels that he has had enough of these rebels’

attacks. Although he considers the likely loss of innocent lives and he deems this loss, in itself,

undesirable, he decides that under the aforementioned circumstances this is a price worth paying

and orders an artillery counter-attack.

Those in the Army who are supposed to carry out this order refuse to obey it. They

acknowledge the risk to human life engendered by the two rebel-militants in question.

Nevertheless, under the circumstances it is clear that the expected harm these two rebel-militants

can cause (i.e., the scale of harm weighed together with the probability of its occurrence) is much

lower than the expected harm to innocent lives that an artillery counter-attack on the

aforementioned apartment block would cause. These soldiers acknowledge that the President is

aware of the relevant facts mentioned above, that he is generally competent to decide well in this

context and that by and large his decisions are likely to lead them to conform to reasons better than

they would have, had they acted alone. But this time they clearly envisage that a misjudgment

came about and that the order is wrong in the extreme. They contravene the order although in this

jurisdiction no legal provisions (military or civil, including constitutional) capable of defeating

such a Presidential order are in force;96 when disobeying the order these soldiers act for pertinent

96 Current international law, e.g., international humanitarian law, could be applicable in this case. To facilitate our discussion, we can assume that the case takes place at a time when international laws applicable in the case

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moral reasons, i.e., the value of human life, which require them to restrain the use of military force

so as to minimize harm to civilians.97

Now suppose a similar scenario with certain modifications: the President approves certain

targets for a counter-attack. This time the targets are located only in bases of the rebel-militants,

rather than in any civilian vicinity. One of those who are supposed to carry out the order, Michael,

is a soldier whose role is to provide an artillery crew with firing data such as the angles of firing,

amounts of propelling charge to be used, etc. He calculates the firing data, inter alia, according to

the locations of the relevant targets, which he receives through orders coming from his superiors.

The orders usually sound as follows: “Fire on target ….” A target location is thus indicated by

latitudinal and longitudinal co-ordinates (i.e., numbers consisting of several digits). Michael’s

superiors are professional and highly competent officers who are likely to perform their (essential)

role successfully, leading their subordinates, including Michael, to better conform to reasons

relevant to that context, and this is known to Michael. On our occasion, however, notwithstanding

the general competence of these officers, one of them makes a mistake, say a miscalculation or

miswriting, and as a result one digit of the co-ordinates Michael receives from the headquarters

ends up being erroneous. The mistaken location given to him is in an area densely populated by

civilians, members of the minority in question. As it happens, he notices that the target he received

is located in a civilian area, and, therefore, refuses to follow the order (although he does not know

whether this is the consequence of a technical error or a different failure). Here too, when Michael

refuses to follow the order, he acts for relevant moral reasons, such as respect for human life.

In the foregoing scenarios, in view of the (in differing ways) radically immoral content of

the directive given to subjects, they ought to disobey while the normal justification thesis is

complied with by the authority. Note, en passant, that even where the directive-issuer, in Situation

1, does not meet the normal justification condition, here too, we do not expect that this, in itself,

(conventions or customary law) were not in force (e.g., the beginning of the 20th century). For the purpose of our question—about the relation between legal reasons (generated by positive laws) and moral reasons—we must set aside contingencies that will obscure the matter by turning it into a mere contest between two legal reasons. Parenthetically, a further point bears noting: that disobedience in such cases should not depend on the provisions of international law is significant not merely in the theoretical sense but also in the practical sense, for several reasons: first, international laws may always change (and, indeed, might go wrong); second, there may be cases of objectionable directives which are not covered or provided for by international laws; third, there are dissimilarities between the laws of different jurisdictions pertaining to matters of interpretation and application of international law within the jurisdiction, as well as differences between the domestic point of view on international law and international law tribunals’ point of view; fourth, and this amplifies the implications of the previous point, international law itself has quite limited means of enforcement. This may mean that, from a Razian perspective, international law is not, in itself, de facto authoritative and thus may not be legitimately authoritative in its current state (see Raz, “The Problem of Authority,” supra, note 11, 1036–1037; Raz, PRN, 150; Raz, “Facing Up,” supra, note 6, 1194). (Although the content of some international laws may gain that status within a certain jurisdiction insofar as they are given effect and enforced by domestic institutions within that jurisdiction.) 97 It would be surprising if anyone claimed that under these circumstances the order should be obeyed; however, in that case one may modify the example’s premises to render the order intolerably immoral in one’s own view—the substantive argument would stay the same.

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would be the sole reason why subjects disobey. It is implausible that subjects, deciding how to act

in the face of such a radically immoral directive, would or should nevertheless confine their

reasoning merely to the likelihood of their overall conformity with reasons in the relevant domain,

rather than treating the specific and immediate deleterious consequences of following that

directive as a self-contained consideration. This reinforces the conclusion that the normal

justification thesis does not capture the reasons for which subjects disobey under Situation 1. At

any rate, our core finding is that under Situation 1 the directive-issuer may comply with the normal

justification thesis, and thus may meet the authoritativeness conditions laid down by the service

conception of authority.

One further clarification is in order. There is no denying that in some jurisdictions the legal

system embraces means, such as constitutional protection of certain human rights, that allow

courts to abolish directives like those discussed above. The first point to note in this regard is that

insofar as one conceives of such a judicial ruling as changing an existing law or as making new

law, rather than applying an existing law, it follows that if subjects disobey prior to a judicial

ruling (and in our cases they are justified in disobeying even where no judicial decision approves),

they act in defiance of a directive that, at the time they act, is valid. A second important point is

that whether a certain legal system encompasses positive constitutional provisions that may defeat

a given iniquitous directive is a contingent question (a non-positivist assumption that the legal

materials necessarily include, in some way, moral principles to that effect is, by definition,

inconsistent with the pre-emption thesis).98 Conversely, the subject of our enquiry—the relation

between legal reasons (generated by positive laws) and moral reasons—is anything but contingent.

To answer the question of whether moral reasons are excluded by legal reasons, we must set aside

contingencies that will obscure the matter by turning it into a mere contest between two legal

reasons. For the purpose of this enquiry, therefore, I have concentrated on a case where there is no

positive legal provision that defeats the relevant Presidential directive.99

98 Raz mentions that if a directive “violates fundamental human rights” it may be open to challenge (Raz, MF, 46). I take Raz to mean that this is a ground for challenging authority only to the extent that the legal system in question positively enacts provisions giving legal effect to the relevant rights (and subject to the provisions of that legal system regarding the appropriate procedure by which directives might be challenged), which is, again, a contingent matter. It is not likely that he refers to fundamental human rights in this context as an unfettered moral notion, for the recourse to such a notion is incompatible with the claim that law excludes its background moral reasons (see n. 61). 99 This, once more, may be of practical significance, among other things, because positive constitutional laws of many legal systems will fall short of catering for all possible cases where weighty enough moral reasons justify disobedience. Insofar as there exists a system in which positive constitutional laws happen to provide for every possible case where weighty enough moral reasons justify disobedience, a claim about exclusionary legal force in that system would, in effect, collapse into a weight-conception. At any rate, these contingencies supply no answer to our substantive question about the relation between positive law and moral reasons.

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B. Jurisdictional and Decision-Making Limitations

The previous Subsection discussed the authoritativeness conditions put forward by the

service conception of authority. This Subsection will concern some additional ways in which the

legitimate exercise of authority may be limited. Legitimate authoritative power, Raz suggests, is

often confined to a certain jurisdiction, and is often subject to certain restrictions as to the process

through which authorities should reach their decisions. Let us consider whether such limitations

may sustain the no-authority reply—the claim that the directives set aside in Situations 1 and 2 are

not authoritative ones.

I shall start with the more formal limitations. First, Raz mentions that “legitimate authority

has the right to issue directives within the sphere of its jurisdiction,”100 and that jurisdiction is

determined, inter alia, “by the range of actions the authority can command.”101 For example, “the

house committee can require paying to a common fund, but not attending church service.”102 Thus,

to the extent that a given authority is restricted—by the definition of its role or due to its

subordination to other authorities—to a certain domain, this may suggest itself as a criterion of

authoritativeness ostensibly distinguishable from a content-based assessment of its directives on

their merits; e.g., we know that the house committee is in charge of matters of administration of

the house, and possesses no authoritative power to issue directives extraneous to that domain. This

is so, it may be submitted, irrespective of the merits of such ultra vires directives, i.e., whether the

act they prescribe is the right thing to do. Straightforward as this might be,103 it fails to meet the

challenge of Situations 1 and 2. For extremely immoral directives, or normal directives that under

certain circumstances lead to an extremely immoral outcome, may be issued by a person or

institution pertaining to matters within the domain that this person or institution is normally

supposed to regulate. In respect of Situation 1, this is illustrated in the artillery example given

earlier,104 where we supposed that the President of a certain country, who by virtue of his office is

also the commander-in-chief of the army, issues a directive to commit a military action that is

extremely immoral. As for Situation 2, further illustration in this regard seems superfluous.

Second, one may submit that where some sheer distorting or biasing factors have

influenced the decision-making of an authority, the decision concerned is rendered invalid. This

may be the case, for example, where the decision-maker decides while being intoxicated or

100 Raz, PRN, 192. See also Raz, MF, 62. 101 Raz, PRN, 192. 102 Ibid. See also ibid., 46, 79. 103 The relation between underlying moral merits and jurisdictional boundaries is a subject that cannot be elaborated here. 104 Text accompanying nn. 95–97.

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bribed.105 We can plausibly presume that the absence of such defects in the decision-making

“environment” is indeed a prerequisite for authoritativeness. Even so, while this sort of

prerequisite can rule some cases out of consideration, it fails to disarm the problem posed by

Situations 1 and 2. For people, including public officials, may occasionally make mistakes, and

even bad mistakes that bring about extremely immoral outcomes (Situation 1), where no special

external factors, such as intoxication or bribery, are involved.106 Moreover, where officials issue a

general rule not reprehensible in itself, under some contingencies the rule might lead to a

reprehensible outcome (Situation 2), and this might be the case whether or not any biasing factors

are involved. Prerequisites regarding the decision-making “environment,” therefore, do not solve

our puzzle.

The third limitation I shall consider is more substantive. When Raz refers to jurisdictional

limitations he notes that jurisdiction “is also determined by the type of reasons the authority may

rely upon.”107 Probably, however, Raz does not mean that when an authority considers a reason

that should not have been considered, this itself renders the directive in question not authoritative.

For one thing, such an interpretation seems incompatible with Raz’s service conception of

authority. True, he holds that all authoritative directives should be based on what he calls

dependent reasons, i.e., reasons that “already independently apply to subjects of the directives and

are relevant to their action in the circumstances covered by the directive.”108 (He terms this thesis,

the dependence thesis). Nevertheless, Raz does not treat compliance with the dependence thesis

regarding a given directive as a condition for its being authoritative.109 He says (note particularly

the passage’s ending):

The dependence thesis does not claim that authorities always act for dependent reasons, but merely that they should do so. Ours is an attempt to explain the notion of legitimate authority through describing what one might call an ideal exercise of authority. Reality has a way of falling short of the ideal. We saw this regarding de facto authorities which are not legitimate. But naturally not even legitimate authorities always succeed, nor do they always try to live up to the ideal.110

He then states that the normal way to justify authorities is:

not by assuming that they always succeed in acting in the ideal way, but on the ground that they do so often enough to justify their power.111

105 Such factors are mentioned by Raz in the context of an example regarding an arbitrator (Raz, MF, 42). 106 An attempt to over-stretch the notion of bias as to cover any kind of misjudgment would render that notion indistinguishable from a content-based assessment of directives on their merits. 107 Raz, PRN, 192. See also Raz, MF, 47. 108 Raz, MF, 47. To be precise, he maintains that they should rely on dependant reasons for the most part, but they may also consider some bureaucratic considerations which are “non-dependent reasons” (Raz, EPD, 198, fn. 6). 109 Raz, MF, 38, 47, 55. 110 Ibid., 47. Emphasis added. 111 Ibid. See Raz, “The Problem of Authority,” supra, note 11, 1014, where he lists the conditions of authoritativeness under the service conception of authority, and does not include the dependence thesis.

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Thus, whereas the dependence thesis represents a standard of “an ideal exercise of authority,”112 it

is not, in itself, a standard that an alleged authority must live up to in order to obtain or retain

legitimate authority. Instead, the standard of performance that a would-be authority needs to meet

in order to justify its power is exhausted in the normal justifications thesis, i.e., it must be the case

that this authority “is more likely to act successfully on the reasons which apply to its subjects.”113

(Though, clearly, to comply with the normal justification thesis, a decision-maker would need to

accomplish at least a fairly good degree of compliance with the dependence thesis in most

cases).114

The crucial point of Raz’s service conception is that once we recognize that someone is on

the whole more likely than we are to decide in conformity with reasons applying to us in a certain

domain, it becomes rational for us to entrust him with the power to decide what we ought to do in

that domain. Possibly, Raz would want to qualify this notion to the effect that if subjects happen to

discover direct evidence pertaining to the decision-making process (which is rarely the case),

showing that the decision-maker relied on blatantly irrelevant considerations, they may challenge

his authority. Perhaps under this qualification the service conception of authority may maintain its

bite. But the service conception would not tolerate a further qualification to the effect that subjects

should disregard an authoritative directive whenever they think the authority took a wrong reason

into account, that is, even when they have no direct evidence that the directive was based on

irrelevant considerations.115 For in the absence of such direct evidence, subjects can only detect

defects in the authority’s decision-making process by way of backwards reasoning, inferring from

the decision itself what the considerations underlying it are. On this understanding, subjects are

expected to “see through” the authority’s decision so as to reconstruct the reasoning behind it. To

do so is, in effect, to second-guess the decisions of those to whom they should entrust the power to

decide. Such an allowance would undercut the very essence of Raz’s service conception of

authority. This reinforces the conclusion that Raz is not likely to suggest that legitimate

authoritative directives are only those which were based on right reasons.116

But even if one supposes that in order to be authoritative, a directive must be based on right

reasons, one cannot rule out in this way the possibility that a directive in Situation 1 or 2 would be 112 Raz, MF, 47. 113 Ibid., 55. Emphasis added. 114 Ibid. 115 See Regan, “Authority and Value,” supra, note 6, 1016. 116 For similar reasons, when Raz notes that “if an authority acted arbitrarily” its directives may be open to challenge (Raz, MF, 46), it is not likely that he subsumes under this category every case where the authority’s decision-making is affected by some wrong reasons, nor is it likely that he allows subjects to try to detect arbitrariness for this purpose by inference from the content of the directives they face, rather than on the basis of direct evidence about how the authority reached its decision. Instead, here too he probably refers to special cases where we happen to discover direct data pertaining to the decision-making process, showing that the authority relied wholly or mostly on irrelevant reasons. The limitation concerning arbitrariness, therefore, does not eliminate from consideration the possibility of authoritativeness in our test cases.

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authoritative. This is self-evident in Situation 2 where the rule itself is not objectionable, and its

incidental failure is not attributable to an error on the part of the legislature. But this is also true of

Situation 1, as can be demonstrated by the above artillery example, where we assumed an order to

carry out a bombardment that would have the effect of excessive collateral damage.117 In this

example, despite the two rebel-militants hiding in the apartment block in question, who may be a

legitimate target, given the high number of civilians living in this block, the order to bombard it is

a severely wrong one. But, one cannot say that the order was necessarily based on a kind of reason

that the directive-issuer has no power to consider. The President, in our example, does consider the

relevant reasons. His mistake, however bad it is, pertains merely to the weight he accords to the

various reasons and to the balance between them; he fails to evaluate correctly, and to strike a

reasonable balance between, the risk engendered by these rebel-militants versus the expected harm

to innocent lives that a military counter-attack would cause. The wrongness of the order, severe as

it is, is an issue of degree. Probative of this is the fact that a modification of the numbers of

militants and/or civilians figuring in the example may lead to a different conviction vis-à-vis the

order in question. That is, if one assumes an example similar in all respects, except for the

following: there are, say, two hundred militants and one civilian in the relevant apartment block; it

may well be that the order to bombard the block would no longer be wrong in the extreme or at

all.118 Between this variant and the original example runs a continuum, i.e., the difference between

them is a difference in degree not in kind. The example illustrates that even if the dependence

thesis were treated as a precondition for authoritativeness it would not enable us to preclude the

possibility of authoritativeness under Situation 1.

To conclude this Section, the various conditions of authoritativeness that the no-authority

reply may plausibly invoke (considered separately or taken together) are incapable of ruling out

the possibility of authoritativeness in Situations 1 and 2. As for Situation 1, it bears emphasis that

no contention was made to the effect that the directives subsumed under this situation are

authoritative. Arguably, such extremely immoral directives can never be authoritative. I have

merely intimated that that conclusion could not be established without espousing conditions of

authoritativeness that amount to a content-based assessment of the directives’ conformity with

underlying reasons, and such conditions of authoritativeness render futile the claim that

authoritative directives exclude reasons underlying them. The no-authority reply, therefore, fails to

resolve the apparent contradiction between the pre-emption thesis and Situations 1 and 2.

117 Text accompanying nn. 95–97. 118 Some might prefer saying that such an order is, at best, justifiable. This, nevertheless, does not detract from our material point, i.e., that the reasons considered by the directive-issuer in the first and second versions of the example may be of the same kind, and that these are reasons he is permitted, and probably obliged, to consider.

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III. SCOPE OF EXCLUSION

In the present Section, I begin by briefly presenting the Razian notion of scope of

exclusion. I subsequently examine what has been titled here the scope-of-exclusion reply,

concluding that this reply cannot reconcile Situations 1 and 2 with the pre-emption thesis.

Exclusionary reasons, according to Raz, vary in their scope of exclusion; they may exclude

all or only a certain class of first-order reasons.119 As to the question of which reasons are within

the scope of exclusion of an authoritative directive, the following twofold answer can be extracted

from Raz’s writing: (1) excluded reasons are “all the reasons both for and against [the prescribed

conduct] which were within the jurisdiction of the authority”120 or, in other words, “on which the

authority had power to pronounce”121; (2) the foregoing reasons will, by and large,122 consist of

what Raz terms the dependent reasons, namely, reasons that “already independently apply to

subjects of the directives and are relevant to their action in the circumstances covered by the

directive.”123 As pointed out earlier,124 Raz refers on various occasions to a more qualified scope

of excluded reasons that encompasses not all of the reasons the authority was meant to consider,

for and against the directive-act, but rather only those against it:

[A]uthoritative directives preempt those reasons against the conduct they require that the authority was meant to take into account.125

[T]he pre-emption excludes only reasons that conflict with the authority’s directive.126

The pre-emption thesis acknowledges that subjects may act upon first-order reasons not within the

scope of exclusion of a directive.127 Inasmuch as these unexcluded reasons conflict with and

countervail reasons that the directive reflects,128 an act in defiance of the directive will be

warranted:

In a case to which a reason incompatible with the norm, but not excluded by it, applies one must determine what one ought to do on the balance of reasons, comparing the weight of the norm as a first-order reason with the weight of the competing reason.129

119 Raz, PRN, 40. 120 Ibid., 192. 121 Raz, “Facing Up,” supra, note 6, 1194. 122 As mentioned above (n. 108) he acknowledges that authorities may also take account of some bureaucratic considerations which are “non-dependent reasons.” 123 Raz, MF, 47. 124 Text accompanying n. 11. 125 Raz, “The Problem of Authority,” supra, note 11, 1018. 126 Ibid., 1022. See also ibid., 1021–1023; Raz, PRN, 144. 127 Raz, PRN, 79, 192. 128 Taking into account also considerations against disobedience having to do with its potential to encourage others to disobey in cases where disobedience is not warranted (ibid., 77, 192). 129 Ibid., 77. See also ibid., 192; Raz, The Authority of Law, supra, note 41, 22.

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The foregoing specifications might give rise to what I have called the scope-of-exclusion reply,

i.e., a contention that the first-order reasons calling for disobedience in Situations 1 and 2 are not

those that are claimed to be excluded, and so these situations are actually consistent with the pre-

emption thesis. Let us examine the scope-of-exclusion reply.

For convenience of discussion, I shall begin with Situation 2 and turn to Situation 1 next.

The scope-of-exclusion reply needs to be verified in respect of Situation 2: given a Situation 2-

type of case we should be able to say that the reasons justifying disobeying the rule are indeed not

within the scope of exclusion of that rule, and, of course, we should be able to explain why they

are not within that scope.

Let us work with the following example.130 In a certain jurisdiction a new law regulating

the postal service is initiated and drafted by the relevant governmental department. Suppose that,

as part of a due enactment procedure, the law is approved by the Prime Minister and then being

passed in the legislative body, which are the highest authorities in the country. Due to concerns of

the responsible officials regarding the punctuality and promptness of mail delivery the following

provision is included in that law: “No person shall knowingly obstruct or delay the delivery of

mail, or knowingly act in a way that brings about obstruction or delay of mail delivery.” This

legislation, including the above provision, proves to be a beneficial measure that considerably

improves postal services across the country. Now, assume the following incident: a mail carrier,

call her Jane, drives a van loaded with mail through a rather outlying interurban road, on which the

traffic is very thin. As it happens, she discerns an overturned car on the wayside and an injured

person lying beside it. She realizes that an accident must have taken place. As Jane halts and

approaches that person, it strikes her that the injury is a critical one. By hypothesis, under the

circumstances, the only effective way she can save this person’s life is to rush him to the nearest

hospital. Indeed, she acts this way, deviating from her normal route, and as a result the mail

delivery is delayed. Suppose that in the relevant jurisdiction no legal provisions (including judicial

precedents) are in force obliging or allowing Jane to defy the relevant rule in order to assist

another person in danger (e.g., the Good Samaritan obligation). Thus, Jane acts on moral reasons

to that effect.

Let us first consider a possible resistance to the example’s premises. One might insist that

there must be some legal provisions on grounds of which Jane’s act can be justified—if not

130 While the example is somewhat inspired by the actual case United States v. Kirby 74 US 482 (1869) (hereafter: U.S. v. Kirby), its premises are differently shaped to facilitate our discussion. U.S. v. Kirby is discussed in Moore, “Authority, Law, and Razian Reasons,” 869, as part of the author’s objection to the view that judges treat statutes as excluding underlying moral reasons (ibid., 864–865). Raz, in reply, suggests that this case is not a counter-example to the thesis that legal provisions exclude moral (non-legal) reasons since it “turn[s] on judicial discretion to weigh various legal considerations against each other…” (Raz, “Facing Up,” supra, note 6, 1169). The question of the ground for the judgment in U.S. v. Kirby cannot be discussed here.

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provisions obliging one to assist people in danger, then, at least, general legal defenses pertaining

to situations of necessity or emergency. On this view, our premise that such legal defenses are not

available in the case is impossible, for every legal system encompasses (at least tacitly) such

defenses having general applicability, irrespective of the law’s provisions (e.g., even if the postal

law explicitly states that it has no exception) and even in the absence of basis for that in courts’

decisions.131 This argument, though it is meant to oppose the view endorsed here, may end up

reinforcing it. For if defenses for some justified law-violators are always applicable regardless of

the law’s positive provisions, this must be accounted for by moral considerations. That is, reasons

for obeying authoritative directives can be overridden by competing weighty enough moral

reasons. Such merit-based defeasibility of authoritative directives is not an innovative

discovery;132 but it is, in essence, the foundation on which the argument of this essay rests. For this

merit-based defeasibility, I venture, is at odds with the pre-emption thesis. At this point, an

objector might want to reconcile the pre-emption thesis with the fact that moral reasons can defeat

authoritative directives, by saying that such moral reasons are unexcluded ones. The objection,

then, brings us back to the notion of scope of exclusion, which is the one we set ourselves to

consider in the first place; no work is done by the foregoing objection. We may therefore advance

to consider the scope-of-exclusion reply itself.133

Suppose it is claimed that the moral reasons for which Jane defies the mail-delay

prohibition are not within its scope of exclusion. The crucial difficulty with that claim would arise

once we ask: Why are these reasons not within the scope of exclusion? What makes them reasons

not within that scope? And how do we know that they are such reasons? This difficulty has been

pointed out by Chaim Gans:

If we… take rules to be exclusionary reasons, we put a barrier between the reason for having them and the reason which might be violated by them. If following a rule violates some reasons, how do we know what to do? How do we know whether these reasons are excluded by the rule and therefore that the rule ought to be followed, or whether they are not excluded by it and therefore the rule ought not to be followed? Do we have, for every rule, a list of reasons which may be violated by it (i.e., excluded by it) and a list of reasons which may not be violated by it? How do we prepare these lists? Raz does not answer these crucial questions. It seems however that the answer would have to be: Yes; by weighing the reasons for

131 I doubt that Raz would endorse such a claim, inter alia, in view of the following remark, with an emphasis on its ending sentence: “There are many legal doctrines specifically designed to allow exceptions to legal requirements, doctrines such as self-defence, necessity, public policy… The point is that the law demands the right to define the permissible exceptions” (Raz, MF, 77). 132 See for example references in n. 48, and, particularly, Schauer, Playing by the Rules, supra, note 6, 118. 133 One implication of the discussion in this Section will be that even if we suppose that open-ended rule-defeating legal doctrines (as necessity or emergency defenses) are applicable in the form of positive law and ignore the fact that their applicability as positive law is a contingency, our difficulty is not rectified. It will be suggested that if such doctrines provide for all cases where defying a rule is justified by weighty enough moral reasons they effectively leave no room for the exclusion claim, and if they cannot provide for all such cases then the exclusion claim faces difficulties in explaining cases where a rule is justly defied where no positive law allows this.

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having the rule against the reasons violated by following it. But can we foresee all possible reasons of this sort, and their possible complications in reality? And even if we can do that, are we in fact doing that whenever we adopt a rule? And is it really worthwhile doing it in advance when this can be done ad hoc, when we face the concrete conflict? And above all—even if all this is possible, and worthwhile and in fact done—if the exclusionary force of rules is calculated on the basis of the weight of the reasons for having them, is the operation of rules as exclusionary reasons different in substance from the operation of outweighing?134

Before I subscribe to Gans’s view, note that a distinction between “the reason for having” a rule

and “the reason which might be violated” by a rule can itself be misleading. Reasons for having a

rule, broadly conceived, are not necessarily reasons that, on every occasion, approve the act

required by the rule. A rule, as Raz acknowledges,135 often reflects a compromise between

considerations or values of very different kinds that, on a given occasion, may or may not support

the act prescribed by that rule. A rule setting the speed limit at 40 mph, for example, reflects a

compromise between considerations for allowing people reasonably quick mobility and

considerations for the safety of drivers and pedestrians. If one must reach a certain destination

extremely urgently, mobility for one’s purposes may be a reason for driving faster than 40 mph.

This, of course, finds a place in Raz’s account, but that actually accentuates our uneasiness: Raz’s

claim is not that excluded reasons, on a given occasion, are those in favor of the rule-act, whereas

all reasons against this act are unexcluded. If this were the case it might have been easier to

identify that (and explain why) a certain reason is excluded or unexcluded, but at the same time the

very point of the notion of exclusion would have been lost. Therefore, Raz suggests that “..one

ought to exclude all the reasons both for and against [the prescribed act] which were within the

jurisdiction of the authority,”136 and at times he confines this only to those against the prescribed

act.137 Whereas “[i]n a case to which a reason incompatible with the norm, but not excluded by it,

applies one must determine what one ought to do on the balance of reasons, comparing the weight

of the norm as a first-order reason with the weight of the competing reason.”138 So the puzzle is

this: given a reason against a rule-act, in the case of Jane a moral reason for assisting people in

danger, how do we know whether this is an excluded or an unexcluded reason?

As stressed in Gans’s above-quoted remark, we do not have lists specifying the reasons

that are excluded by different rules. We need to seek, then, a certain criterion able to tell us

whether these reasons are inside or outside the scope of exclusion. If we fail to locate such a

criterion, we cannot turn to fix the scope of exclusion according to considerations of the weight of

134 Gans, “Mandatory Rules and Exclusionary Reasons,” supra, note 6, 385. 135 Raz, PRN, 187. 136 Ibid., 191–192. 137 nn. 125–126. 138 Raz, PRN, 77.

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the relevant reasons, treating every reason that, on the balance of reasons, justifies disobedience as

an unexcluded one.139 For the balance of reasons is the one thing on which the scope of exclusion

cannot depend (henceforth, when using the term “the balance of reasons” I refer to a weight

comparison of all relevant reasons); one cannot say that some reasons are excluded from the

balance of reasons and that what determines which reasons are thus excluded is the balance of

reasons. In other words, one cannot suggest that conflicts between an exclusionary reason and

reasons within its scope of exclusion do not turn on the “principle that all reasons are comparable

with regard to strength”140 if the latter principle itself determines which reasons are within the

scope of exclusion and which are not. A parallel caveat is made by Gans:

Exclusionary reasons do not exclude all reasons but only some reasons. Defending this position he [i.e., Raz] will be driven to admit that in order to determine which reasons are excluded by an exclusionary reason and which are not, we have to weigh the justification of the exclusionary reason against the eventual conflicting first order reasons.141

[I]n order to know which reasons are excluded by the suggested exclusionary reasons we are forced to resort to the weight of the reason in virtue of which these particular reasons are exclusionary reasons. So it undermines the very viability of the notion [i.e., the notion of exclusionary reasons].142

Raz does indicate certain seemingly distinctive criteria setting limits to the scope of exclusion. To

start with, he refers to auxiliary reasons such as the directive-issuer’s rank and role affecting the

scope of his jurisdiction and, thereby, his directives’ scope of exclusion.143 So, for example, a

directive issued by high-ranking officials may have a scope of exclusion broader than that of a

directive issued by low-ranking officials. As to the directive-issuer’s role, as an example, a chess

club administration committee can only issue valid directives related to the club’s administration,

and thus cannot exclude reasons by issuing unrelated directives. Such factors, however, are not the

key to solving our case. For our example postulates a rule issued by an empowered authority that

is in charge of the subject being regulated and is of the highest echelon; the foregoing factors seem

139 For related doubts regarding the notion of scope of exclusion, see Simmonds, Central Issues in Jurisprudence, supra, note 30, 262–263. 140 Raz, PRN, 43. 141 Gans, “Mandatory Rules and Exclusionary Reasons,” supra, note 6, 389. 142 Ibid., 390. Edmundson remarks: “…Gans is correct that the scope of an exclusionary reason is ultimately fixed by balancing first-order reasons, but from this it simply does not follow either that Jeremy recapitulates this reasoning when he follows orders or that he must recapitulate it…” (Edmundson, “Rethinking Exclusionary Reasons,” supra, note 6, 336). However, Gans does not seem to refer here to whether subjects recapitulate (in the sense of deliberating on) moral reasoning. Regardless of this issue (which I discuss in Section IV), Gans suggests that it would be problematic to submit that some reasons are excluded from the balance of reasons but that what determines which reasons are so excluded is the balance of moral reasons itself. Indeed, Edmundson eventually makes a similar observation: “Exclusionary reasons can be trumps only for a reason, and only so far as reason allows, but to grant this much seems to undermine the ‘separate autonomous assessment’ idea” (ibid., 337). 143 Text accompanying nn. 100–103.

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to assign in this case the broadest scope they can possibly assign.144 If, in view of this, it is

conceded that the scope can cover Jane’s reasons to defy the rule, we are facing a counter-example

for which the scope-of-exclusion reply fails to account. Alternatively, it must be shown what other

criterion establishes that these reasons are not within the scope of exclusion.

Let us examine, therefore, whether there is any other distinctive criterion establishing that

conclusion. As was noted, the reasons excluded by an authoritative directive are, for Raz, only

those reasons against the directive-act that the authority was meant to take into account, and the

latter, for the most part, consist of the dependent reasons. Perhaps, then, if we found that the

reasons for Jane’s act do not appertain to the dependent reasons, we would have a certain

indication that they are not within the scope of exclusion. Are the reasons for Jane’s deed not part

of the dependent reasons in respect of the mail-delay prohibition? The definition of dependent

reasons appears to furnish no principle on the grounds of which we can answer that question, at

least no principle consistent with the pre-emption thesis. To reiterate, the definition refers us to

“reasons which already independently apply to subjects of the directives and are relevant to their

action in the circumstances covered by the directive.”145 Now, if the reference to “action in the

circumstances covered by the directive” means something like every action to which the directive

has some relevance then Jane’s reasons for action come under the definition, for the mail-delay

prohibition has some relevance to her action.146 If this is true, once more, the example displays a

case where subjects should violate a rule for its dependent reasons, which are alleged to be

excluded.

So maybe Raz’s notion of dependent reasons is narrower. Yet again, it is hard to find any

footing for that in the definition of dependent reason.147 On the basis of what criterion can we

establish that Jane’s reasons for changing her route are not reasons that “independently apply to

144 Edmundson notes, when discussing the Raz-Gans disagreement: “Although Raz distinguishes ‘scope-affecting’ and ‘strength-affecting’ reasons that bear upon any exclusionary reason,… the terminology simply reflects and does not ease his basic difficulty” (Edmundson, “Rethinking Exclusionary Reasons,” supra, note 6, 335). 145 Raz, MF, 47. 146 The pre-emption thesis’s formulation indicates that Raz’s intention is different: “[T]he fact that an authority requires performance of an action is a reason… which is not to be added to all other relevant reasons… but should exclude… some of them.” (ibid., 46) (Emphasis omitted, save the word “some”). 147 Similar questions arise regarding the following remark by Raz: “Usually each rule is based on a number of reasons, and they reflect a judgment that those reasons defeat, within the scope of the rule, various, though not necessarily all, conflicting reasons. Rules are, metaphorically speaking, expressions of compromises, of judgments about the outcome of conflicts… Characteristically, cases are ‘simply’ outside the scope of the rule if the main reasons which support the rule do not apply to such cases. Cases fall under an exception to the rule when some of the main reasons for the rule apply to them, but the ‘compromise reflected in the rule’ deems other, conflicting reasons to prevail.” (Raz, PRN, 187). Jane’s case does not come under the first type of case Raz mentions. Does this mean that she acts for reasons within the scope of exclusion? When referring here to “the scope of the rule” Raz seems to have in mind a scope wider than the rule’s scope of exclusion. If so, the question remains: how do we know whether or not Jane’s reasons for action fall under the (narrower) scope of exclusion? A distinction between conflicting reasons that the “compromise reflected in the rule” deems to be defeated (i.e., excluded) and some “other, conflicting reasons” that the “compromise reflected in the rule” deems to prevail (i.e., unexcluded) appears to provide no criterion distinguishable from the balance of reasons.

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subjects of the directives [i.e., the mail-delay prohibition] and are relevant to their action in the

circumstances covered by the directive”?148

A proposition that special circumstances where subjects come across a critically injured

person are not included in “the circumstances covered by the directive” would not do. For how,

and on what grounds, do we know that these circumstances are special circumstances that are not

covered by the rule? The aforementioned concerns raised by Gans re-emerge here in a new

version: we have no fixed lists of circumstances that are covered or not covered by the rule, nor are

we supposed to have them; no such knowable-in-advance dichotomy exists. It is unclear, then,

how the question—whether a moral reason for assisting a dying person justifies disobedience of

the mail-delay prohibition—can depend on whether this reason is outside such an undefined scope

of exclusion, rather than simply turning on that reason’s weight.

A further reply runs as follows. Indeed we have no fixed-in-advance scope or lists of

circumstances covered by a rule. However, this does not mean that there are no circumstances that

are recognizably covered by a rule and other circumstances that are recognizably not covered by it.

For instance, undoubtedly the mail-delay provision is meant to prohibit Jane deviating from her

normal route so as to visit a friend if this would delay the mail delivery; thus, these are

circumstances covered by the provision. On the other hand, undoubtedly that provision is not

meant to prohibit Jane bringing a dying person to the hospital, even at the cost of a post delay;

thus, these are circumstances not covered by the provision.149

This reply would be of no avail if it simply reflects an intuition that the statute should not

be set aside for the purpose of visiting a friend, but should be set aside when necessary in order to

save lives. For that intuition, however sensible, stems directly from the balance of reasons. In

order to learn whether the above reply is, after all, helpful, the term “meant” it employs must be

unpacked. That is, we should search for some legal interpretive devices, not themselves subversive

to the pre-emption thesis (e.g., not ones that involve recourse to underlying moral reasoning),

telling us that the mail-delay prohibition is not meant to cover Jane’s circumstances. While it is

essential, for that purpose, to consider the implications of various interpretive tools, the following

arguments are not intended as arguments about the rightness of certain methods of legal

interpretation, nor do they purport to suggest or deny that legal interpretation must always have

148 Raz, MF, 47. 149 Raz employs the idiom “meant” in this context: “If the addressee did not perform the prescribed act because of the presence of an overriding reason not meant to be excluded by the order he is not regarded as having disobeyed the order…since he did not act contradictory to the intention of the prescriber” (Raz, PRN, 83–84). As Raz would probably agree, most directive-issuers are not familiar with the term “exclusionary reasons”; they can only intend to exclude reasons in the sense that they intend to oblige, prohibit, etc., (and, for Raz, this is equivalent to excluding reasons). Therefore, I preferred utilizing, in the above-articulated objection, the common usage term “prohibit.” As to the technical character of the term “exclusionary reasons”, see Perry, “Second-Order Reasons, Uncertainty and Legal Theory,” supra, note 6, 942; Raz, “Facing Up,” supra, note 6, 1158.

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recourse to moral reasoning. Again, the sole question that concerns us is the narrow (but

potentially instructive) question of what legal interpretive apparatus can uphold the scope-of-

exclusion reply with respect to Jane’s circumstances. Accordingly, objections to the methods of

interpretation employed here or objections adverting to general interpretive theories or interpretive

tools in abstracto would be beside the point. A successful objection, in our context, should

demonstrate how such interpretive tools affirm, consistently with the pre-emption thesis, that the

mail-delay prohibition is not meant to cover the circumstances of our example.

A few possibilities should be considered in this regard. First, interpretive methods deriving

legal meaning from moral-political values and principles that provide the best justification of a

community’s political practice,150 or theories of interpretation allowing recourse to moral-political

evaluations simpliciter, can perhaps ground the conclusion that the mail-delay prohibition is not

meant to cover our example. However, these are obviously not available in the context of

defending a claim that law excludes its background (moral-political) reasons. For similar reasons,

“thinner” interpretive techniques deriving legal meaning from the underlying objective or raison

d'être of the particular rule at issue are also not available in our context (deriving the rule’s

rationale merely from the facts surrounding the legislation is unsatisfactory in our case, as will be

expounded below).

Another possibility is that the wording “meant” is used in the preceding reply to indicate an

intention of the lawmaker in the sense of a subjective, actually existing, state of mind that pertains

to the circumstances at issue. Raz, however, denies that the intention which members of the

legislature actually had in mind when enacting a statute plays a key role in legal interpretation.151

In Jane’s example, particularly, this route seems barren. For we may pose the question: did

government officials or members of the legislative body, when enacting the above statute, actually

think of circumstances where a mail carrier stumbles upon a severely injured person in a rather

isolated area, etc.? The answer is: probably not. Regardless of one’s view on whether the author’s

intention should guide legal interpretation, or on how accessible it is to interpreters,152 in cases

such as ours, plausibly, intention in the sense of an actual state of mind of the lawmaker regarding

the circumstances at issue did not really exist at the time of the incident.153 A concomitant remark

150 Dworkin, Taking Rights Seriously, supra, note 41, 14–130; Nicos Stavropoulos, "Interpretivist Theories of Law," The Stanford Encyclopedia of Philosophy (Winter 2003 Edition), ed. Edward N. Zalta. URL = <http://plato.stanford.edu/archives/win2003/entries/law-interpretivist/>. 151 Joseph Raz, “Why Interpret?,” Ratio Juris 9 (1996) 349, 355; Raz, EPD, 229, 232; Joseph Raz, “Intention in Interpretation,” in The Autonomy of Law, ed. Robert P. George (Oxford: Clarendon Press, 1996), especially p. 263. See further Joseph Raz, “Interpretation Without Retrieval,” in Law and Interpretation, ed. Andrei Marmor (Oxford: Clarendon Press, 1995), 155. 152 See Raz, “Intention in Interpretation,” supra, note 151, 263. 153 It might be the case that some government officials or members of the legislative body who passed the mail-delay prohibition had in mind a more general notion such as an “emergency” or “necessity” exception, but then again, it might be the case that they had no such thought in mind (and there is not any factual indication that they had). Surely,

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is made by Donald Regan,154 referring to an example of an agent who adopts what Regan terms an

indicator-rule and departs from the rule on a particular occasion (Regan, it should be noted,

conceives of authoritative directives as indicator-rules). This is what Regan says about a

contention that the relevant occasion is not covered by the rule:

I think we misrepresent the situation if we just say the old indicator-rule did not cover this case. The case comes within the literal terms of the old indicator-rule as the [agent]… would have stated it to himself (and quite possibly often did state it to himself). And the [agent]..., we may assume, never made any reservation for a case such as we have imagined. He just never thought about this case until it arose. I think we must just admit that our indicator-rules are always provisional, even in the sense that we may be led to make case-by-case exceptions, and leave it at that.155

N.B.: the fact that an authority issuing a rule “just never thought about [a] case until it arose”156

cannot in itself entail that this case is not covered by the rule.157 When a rule is enacted the

enacting authority does not specifically visualize the details of all, or most, circumstantial

scenarios that may come under the rule and their countless possible variations. This would be not

only unfeasible but also would miss a central feature of rules. Rules are practical solutions that

involve generalizations.158 If every case not actually contemplated by the authority were seen as

not covered by its rules, there would be very little point in having rules. Indeed, Raz notes,

pertaining to the idea that “the law is determined only regarding cases which the law-maker

actually contemplated and had in mind when making the law,” that it is “not merely false but very

likely incoherent.”159

Therefore, an actual intention in the sense of an existing state of mind of legislators

regarding Jane’s circumstances seems to be a phantom, while the absence of such an intention

does not entail that these circumstances are not covered by the statute. The solution, then, probably

lies elsewhere. Raz, as indicated, may well agree. One of the central tenets of his conception of

interpretation is the following:

[W]hile the theory of authority shows that the legitimacy of legislated—that is, authority-based—law depends on it being interpreted in accordance to its authors’ intentions, the guide to interpretation which the theory of authority indicates is reliance on the conventions for interpreting legislative texts of the kind in question prevailing in the legal culture when the legislation in question was promulgated.160

Jane’s disobedience should not depend on such a contingent factual question. She ought to contravene the rule regardless of the subjective state of mind of the legislators. An objector might say that, regardless of their subjective state of mind, the legislators should be presumed to have reasonable intentions, and therefore should be presumed to have no intention that the prohibition would apply in circumstances such as ours. I discuss this type of reply in text accompanying nn. 167–177 below. 154 Regan, “Authority and Value,” supra, note 6, 1010. 155 Ibid. Emphasis added. 156 Ibid. 157 Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996), 66–67. 158 Text accompanying n. 49. 159 Raz, EPD, 232. 160 Raz, “Intention in Interpretation,” supra, note 151, 280.

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The [Authoritative Intention] thesis requires one to understand the legislation as meaning what the legislator said. What the legislator said is what his words mean, given the circumstances of the promulgation of the legislation, and the conventions of interpretation prevailing at the time.161

Before we proceed on this basis, note that Raz brings forward at least two clarifications here: (1)

the above doctrine “is not itself a method of interpretation. Rather it refers courts to the

conventions of interpretation prevailing at the time of legislation”;162 (2) “the doctrine of authority

cannot provide a complete and exhaustive basis for all ways in which interpretive arguments

feature in adjudication.”163 With these caveats in mind, let us examine whether the solution to our

quandary can be found within the bounds of the above doctrine.

The doctrine refers to a combination of three factors: (1) the words of the legislature, given

(2) the circumstances of legislation, and (3) prevailing conventions of legal interpretation.

Initially, note that the first factor, when standing alone, is of no avail. Even if we accept the notion

of “common usage meaning” of language and assume that it bears on legal meaning, that notion

would fail to lead us to the conclusion that the mail-delay prohibition does not cover Jane’s

circumstances. The statute refers to persons who “knowingly act in a way that brings about

obstruction or delay of mail delivery.” Jane’s deed clearly falls under the “common meaning” of

this wording.164 Our case is not a case of ambiguity of the canonical language the law uses, nor is

it a case that instantiates a problem of linguistic vagueness (as when we ask whether a man having

five hairs on his head is a bald man). Hence, as Raz recommends, we must look beyond the

statute’s words, and view it in light of the circumstances of legislation and conventions of legal

interpretation.

Consider the circumstances of legislation in our example. The government decides to

regulate the postal service. The relevant officials are concerned with securing punctual mail

delivery and, hence, the provision in question is enacted. Suppose the foregoing can be learnt from

records of pre-legislation discussions and from a preamble to the statute (neither of which indicate

any other fact related to our issue). On this ground we can tell that the desire to secure punctual

mail delivery is a main reason in the background of this statute. However, as noted earlier,165

statutes often reflect a compromise between several competing considerations, and the statute

under discussion is not different in this respect. Now, the aforementioned circumstances of

legislation (in conjunction with the wording of the mail-delay prohibition) fail to denote that

161 Ibid., 271. 162 Ibid. 163 Ibid., 280. 164 Cf. Moore’s remark regarding U.S. v. Kirby: “[T]he plain meaning of the statutory language, and the intention behind it, seem to require conviction…” (Moore, “Authority, Law, and Razian Reasons,” supra, note 6, 869). 165 Text accompanying n. 135. See also n. 147.

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Jane’s reasons for changing her route are not part of the compromised reasons that the statute

reflects, i.e., that Jane’s circumstances fall outside the scope of the prohibition. While our case is

hypothetical, in practice it is neither unrealistic nor uncommon that the circumstances of

legislation of a statute (or what we know of them) suggest nothing regarding certain eventualities

that may come under the statute.

The third determinant of authoritative intention, according to Raz, is prevailing conventions

of legal interpretation. Let us assume arguendo that legal interpretation is and should be, at least

partly, convention-based.166 Even so, conventions of legal interpretation do not put our challenge to

rest. For one thing, that a certain convention of legal interpretation is in force within a certain

jurisdiction is, essentially, contingent on whether the relevant legal officials have adopted that

convention. By contrast, that our mail carrier should save the injured person in defiance of the mail-

delay prohibition is by no means contingent on the decisions of legal officials. She should not leave

that person to die, whether or not legal officials in her jurisdiction have embraced a convention of

legal interpretation to that effect. This seems to be well illustrated in the premises of our case: given

that there is no positive law (including case-law) that conflicts with the mail-delay prohibition, and

that the case unambiguously comes under the statutory wording, it is hard to think of an interpretive

convention able to bring us to the conclusion that the case is not covered by the statute.

There is, however, one type of interpretive doctrine that an objector might invoke at this

point, claiming that it should be taken as convention-based (a claim I shall not contest here). What I

have in mind is a general interpretive presumption that the legislature never means statutory

language to lead to injustice or an absurd consequence, or the like. Consider the following

formulation, taken from a judgment of the Supreme Court of the United States:

All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.167

I am not certain whether Raz would suggest that recourse to such an interpretive doctrine in our

case can fall under what he terms the Authoritative Intention Thesis, or whether he would conceive

of it necessarily as an “innovative interpretation” outside the boundaries of that thesis (a possibility

that he acknowledges).168 The latter possibility shall be considered further on. Let us now focus on

the former possibility. First, note that even if the interpretive presumption against injustice or

absurd consequences is conventionally accepted by judges in the relevant jurisdiction and serves as

166 For a defense of legal objectivism and critique of the view that legal concepts’ correct application turns on conventional conditions, see Stavropoulos, Objectivity in Law, supra, note 157. 167 U.S. v. Kirby, 486–487. 168 Raz, “Intention in Interpretation,” supra, note 151, 274–277.

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a guide to judicial decisions, arguably this does not entail that it becomes a legal instruction that is

addressed to subjects and is intended to guide their conduct.169 If this interpretive presumption is

not addressed to subjects of the law, then when discussing subjects’ reasons for action, as we do, it

is no longer an available basis for the scope-of-exclusion reply. That is, reasons for which a subject

of the law, such as Jane, contravenes a rule cannot be viewed, on the grounds of that interpretive

presumption, as unexcluded reasons. Suppose, however, that the interpretive presumption against

injustice or absurdity does address subjects of the law. Nonetheless, it cannot lend real support to

the scope-of-exclusion reply, for a number of reasons. To begin with, if it is presumed that the

legislature never intends statutory language to lead to injustice or absurd results, then actually it can

be concluded, regarding any rule of the relevant legal system, that the rule does not cover particular

cases so long as there are weighty enough moral reasons to conclude so.170 It is hard to imagine that

in any circumstances where such weighty moral reasons apply it would not be possible to infer that

the case does not come under the rule-scope on grounds that the alternative would “lead to

injustice… or an absurd consequence.”171 Terms like “injustice” or “absurd consequence” are

general enough to encompass any morally intolerable outcome.172 Under such a qualification, as

will be explained below, the exclusionary reasons account seems to be reduced to indistinctiveness.

Michael Moore calls attention to this very difficulty (referring to the cases U.S. v. Kirby and Crooks

v. Harrelson173):

[S]uppose Raz agrees: judges both do and ought to have the legal power to “overrule” a statute’s plain meaning cum intention and to substitute a different meaning for that statute, and that sometimes judges are obligated to exercise this power. In order to frame our moral thought experiment, Raz now needs to specify what are the unexcluded (first-order) reasons outside the scope of a statute’s (second-order) exclusionary reasons. Since judges are sometimes obligated to overrule a statute’s plain meaning cum intention in their interpretations, the scope of the exclusionary reason given by a statute cannot be unlimited…

169 On the distinction between conduct rules and judicial decision rules, see Jeremy Bentham, A Fragment on Government and an Introduction to the Principles of Morals and Legislation (Oxford: Basil Blackwell, 1948), 430; Meir Dan-Cohen, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law,” Harvard Law Review 97 (1984) 625. At least at one point Raz seems to acknowledge a variant of that distinction: Raz, “Postema on Law’s Autonomy,” supra, note 31, 18. 170 On a Dworkinian conception of “law as integrity” (Ronald M. Dworkin, Law’s Empire [London: Fontana, 1986], 147–275) the matter would be put differently (at least as far as judicial decisions are concerned). From this viewpoint, the question is not of a balance between reasons to endorse the rule’s “plain meaning” and reasons to set it aside; rather, the question is of what is required by moral values and principles figuring in the most appealing account of the political practice. However, as noted earlier, the latter conception is incompatible with the pre-emption thesis as well. 171 U.S. v. Kirby, 486. 172 Alternatively, if one deems there are some cases where a directive leads to a morally intolerable outcome but the foregoing general presumption cannot be resorted to, one’s attempt at reconciling these cases with pre-emption thesis must proceed without the assistance of that presumption. 173 282 US 55 (1930). Moore’s comment refers to judicial decision-making, but if we assume that the presumption against injustice and absurdity addresses subjects as well—which is our working assumption at this point—his comment is applicable, mutatis mutandis, to subjects of the law.

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What is the scope of first-order reasons excluded by a statute’s plain meaning cum intention? … [According to] the U.S. Supreme Court [in Crooks v. Harrelson174]: Judges may consider as an unexcluded reason for overruling the moral absurdity to which a plain meaning interpretation would lead if the absurdity is large. As the Court puts it, judges may “override the literal terms of a statute only under rare and exceptional circumstances… [T]o justify a departure from the letters of the law upon that ground, the absurdity must be so gross as to shock the general moral or common sense.” Yet this… list seems to exclude nothing, for any type of moral absurdity can count, if its weight as a reason is great enough [emphasis added]. …

[S]uch a list… is not compatible with Raz’s exclusionary reasons account of judicial obligation. For what the Court says in Crooks is this: overrule whenever, on the balance of all reasons, you ought to—with the caveat that, since there are usually good reasons (of predictability, legislative supremacy, etc.) not to overrule the seemingly obvious import of statutory language, it will require weighty reasons in favor of overruling in order to tip the balance that way.175

As Moore explicates, the above presumption does not instruct one to overrule a statute’s “plain

meaning” whenever one deems that it leads to a sub-optimal or even wrong outcome. Rather, the

instruction is to overrule only when the moral reasons for doing so are weighty enough to justify

this on the balance of all reasons, including reasons that may support fidelity to the seemingly

obvious meaning of the statute, qua statute, e.g., considerations of predictability, stability, finality,

legislative supremacy, the legislature’s insight into wider policy concerns, etc. Yet this means that

under a general interpretive presumption against injustice or absurdity, reasons that are weighty

enough to prevail on the balance of all reasons (allowing for considerations that support fidelity to

the seemingly obvious statutory meaning) may, in fact, prevail. Thus, while the presumption may

uphold the conclusion that the mail-delay prohibition does not cover Jane’s case, it effectively

entails that no reason that is weighty enough to triumph on the balance of all reasons is excluded,

and the only reasons that can be said to be excluded are those which are overridden by weight. This,

in effect, would cancel out the distinctive property of exclusionary reasons, i.e., their capacity to

prevail not by virtue of weight, and would thus blunt the pre-emption thesis’s edge.176

An objector might assert that I have constructed the example in too general a manner so that

it suggests no details from which to infer that the mail-delay prohibition does not apply to Jane’s

circumstances, save the general presumption against injustice or absurdity. Had I built into the

174 Ibid. 175 Moore, “Authority, Law, and Razian Reasons,” supra, note 6, 870–871. 176 Once more, were this the only relevant difficulty, we would invoke Ockham’s razor, the theoretical principle that forbids adding entities beyond what is necessary, and which would therefore favor the weight-conception. But, as the discussion above and below evinces, the pre-emption thesis actually runs into further problems.

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example more details about the circumstances of legislation, the legal system in question and its

specific rules and rules of interpretation, the assertion proceeds, it would probably have been

possible to find something (another legal text, incidents that gave rise to the concern with mail

punctuality, a comment of a member of the legislature, etc.) on which to pin the above conclusion.

Now, does the preceding objection imply that in every case where the “plain meaning” of a statute

leads to injustice or an absurd outcome some kind of interpretive tool, significantly less general

than the presumption against injustice or absurdity, can be found and utilized to decree that the

statute does not cover the case? Namely, that there are no cases where general doctrines such as the

above presumption must be invoked? Such a view would fail to correspond with reality, but at any

rate its entailments amount to those of the above general presumption, i.e., that whenever reasons

for overruling the statutory “plain meaning” are hefty enough to prevail on the balance of all

reasons (including reasons for clinging to the “plain meaning” of the statue, qua statute), they can,

in fact, take precedence. More likely, an objector would acknowledge the possibility of cases

where, while the statutory “plain meaning” leads to a morally absurd outcome, no interpretive tool,

other than the above presumption or an equivalently general doctrine, is apt to overrule that

meaning. If so, the arguments made here apply in these cases. Thus, even if one could resort, in our

case, to an interpretive tool considerably less general than the presumption against injustice or

absurdity, our substantive theoretical question would merely have been deflected, rather than

resolved.

Now, if the applicability of a presumption against injustice or absurdity depends on an

interpretive convention—as the objection under consideration suggests it does—there remains also

the question: what if the relevant legal officials in the legal system in question have not adopted a

convention to that effect? This alternative appears to leave no basis for the argument that the mail-

delay prohibition is not meant to cover Jane’s case. If that argument is retained after all, it turns out

to stem directly from the balance of reasons. This argument now seems intrinsically dependent on

moral reasoning, and is no longer describable as relying on moral reasoning only to trace the

legislature’s intention (assuming that the latter shares the interpreter’s moral view). As such, the

argument undermines the very notion of exclusion. If, on the other hand, given such a legal system

the argument from statutory meaning is foregone, are we to think that now Jane should avoid

saving the injured person so as to comply with the mail-delay prohibition? Surely not.177

The question of what would be the judgment and its grounds, if post factum Jane’s case

were brought to court, is not our primary concern. Note, however, that quite possibly Raz would

177 The foregoing also suggests that, in fact, the motivation for invoking an interpretive presumption against injustice or absurd consequences in cases such as ours is, in large part, embedded in the moral reasons for avoiding consequences of that kind. I think it has little to do with conventions of interpretation.

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not deny that in such a case judges may be forced to have recourse to moral reasoning (where an

interpretive presumption against injustice or absurdity is not in force, or even where they employ

such an overtly open-ended interpretive doctrine). He may say that, while so doing, judges are not

engaged in identifying the content of law, but rather in a different type of legal reasoning:

I can be said to have embraced a thesis about the autonomy of law: i.e., that it is possible to identify the content of the law without recourse to moral reasoning… But I reject any thesis of the autonomy of legal reasoning, at least if it includes anything more than reasoning to the conclusion that the content of the law is such and such. “Legal reasoning” is normally used to include any reasoning to conclusions which entail that, according to the law, if a matter were before a court the court should decide thus and so… Legal reasoning is not autonomous. For example, much of legal reasoning is interpretive and interpretive reasoning is not, in general, autonomous…

Reasoning to establish the content of the law as it is at any given time can proceed without resort to evaluative considerations… The rest of legal reasoning is (in shape and form) ordinary evaluative reasoning, which is undertaken according to law, for the law requires courts to reach decisions through such reasoning. In legal reasoning, legal rules and standards appear among the reasons inclining the argument towards one conclusion or another. But they compete with other reasons…

[B]y and large, all judicial reasoning is legal reasoning—i.e., reasoning according to the law, reasoning that imports moral and other premises in accordance with the role they have in law, or at any rate consistently with the law. The exceptions are those cases where judges feel that the law does not allow enough scope for moral reasoning, that following it compels them to endorse immoral results, and that in the circumstances it would be right to flout the law and do the morally right thing.178

A judicial decision not to apply the mail-delay prohibition in Jane’s case can be grounded on

moral reasoning, and this, according to Raz, would be in agreement with his “sources thesis,”

which refers only to the identification of law’s content. He may suggest that such a judicial

decision is consistent also with the idea that the pre-emptive force of law applies to courts, for

“courts are only bound by the laws that apply to them”179 and, therefore, “the question is: [w]hat

does the law [of a given legal system] require the courts to do regarding laws which apply not to

them but to the litigants in front of them.”180 That is, it is plausible that the legal system under

consideration empowers courts to change, or deviate from, laws in cases such as Jane’s, and that

the court would exercise this power.181 Now, we need not go into discussion of these propositions.

For we are only interested here in the question of whether Jane’s act is compatible with the claim

that the law is pre-emptive for subjects. In this regard, if a judicial decision not to apply the mail- 178 Raz, “Postema on Law’s Autonomy,” supra, note 31, 4–6. See also Raz, EPD, 230, 233–235. 179 Raz, “Postema on Law’s Autonomy,” supra, note 31, 18. 180 Ibid. 181 Ibid.

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delay prohibition in Jane’s case is seen as changing, or deviating from, an existing law, it follows

that at the time of the event, when Jane acted, we could not say that the prohibition does not cover

the case. This, once more, entails that Jane acted (as she should) on moral reasons that, at least at

the time of her action, could not be said to be unexcluded ones. It would not do to assert here that

the law was indeterminate in that case. For we have seen that nothing gives a reason to doubt that

the prohibition covers Jane’s case except the fact that it would lead to an outcome incongruent

with the balance of reasons—a ground on which one may not rely when defending the pre-emption

thesis.

One further clarification should be made. Raz criticizes “the unimaginative assumption that

either the law is determined by the thoughts actually entertained by the law-maker when making

the law or it must include all the implications of those thoughts.”182 “The dichotomy,” Raz

explains, “is a false one,”183 as a range of possibilities lie in between the two ends. He also notes

that:

in fact we often rely on our ideas of what is reasonable in reconstructing other people’s thought. But if we are any good at the task, we do so only when we have reason to think those others share our view of what is a reasonable opinion, or a plausible argument.184

Thus, Raz does not maintain that any interpretation that goes beyond the actual thoughts or explicit

pronouncements of legislators is simply tantamount to a conviction about the balance of moral

reasons.185 Now, it should be stressed that my arguments in this Section do not depend on any of

the assumptions Raz rejects here. I have not denied that meaning is conveyable by implication, and

that there is a range of possibilities regarding the extent to which implicit meaning figures in

modes of communication; rather, I have merely contended that in cases such as Jane’s neither the

thoughts actually entertained by legislators nor any kind of implication of their thoughts or words

indicates that the prohibition does not cover the case, unless we presume that legislators never

intend statutory language to lead to injustice or absurd outcomes. Nor have I insisted that utilizing

the latter presumption is, conceptually, nothing more than a conviction about the balance of moral

reasons, rather than actually imputing an intention to the legislature (though I doubt that its

essence can be captured in terms of implied intention). Instead, my main claims regarding that

presumption have been, on the one hand, that its availability as part of the positive law is a

contingent matter that provides no answer to our substantive question, and, on the other hand, that

182 Raz, EPD, 232. 183 Ibid. 184 Raz, “Postema on Law’s Autonomy,” supra, note 31, 15. 185 Raz, EPD, 229, 231, 233, 234; Raz, “Intention in Interpretation,” supra, note 151, 256; Raz, “Why Interpret?,” supra, note 151, 355.

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under such a presumption, in effect, no reason that is weighty enough to prevail on the balance of

reasons is excluded.

To conclude the discussion thus far, the argument that the mail-delay prohibition is not

meant to cover Jane’s circumstances turned out to be incapable of upholding the scope-of-

exclusion reply. Aside from that argument, no criterion appeared capable of sustaining the scope-

of-exclusion reply without threatening to render it a mere replication of the balance of reasons, and

thus an inadequate route of defense for the pre-emption thesis.

I now wish to consider the scope-of-exclusion reply with respect to Situation 1 (introduced

in text accompanying nn. 36–45). To begin with, recall that Situation 1 may come about, inter

alia, where the directive-issuer lacks the competence needed in order to direct subjects to better

conformity with reason or where the decision-making process was defective in some obvious ways

(e.g., the decision-maker was drunk or bribed). Raz maintains that under such circumstances the

directive in question will not be authoritative, and therefore, for him, the notion of scope of

exclusion does not even arise there; hence, there is not much point in analyzing the notion of scope

of exclusion under these circumstances. But that is not the only possibility under Situation 1. The

discussion in the previous Section has led to the conclusion that under Situation 1 it is possible that

the directive-issuer would comply with the normal justification thesis. As was stressed there, in

principle incidents of a radically immoral directive may occur even where the directive-issuer is

sufficiently competent to that effect, but due to a local misjudgment, human error or the like,

promulgates a directive that fails to reflect correctly the relevant moral reasons. Moreover, we

have seen in the previous Section that these cases may come to pass where procedural

prerequisites are satisfied. In these circumstances, as the normal justification thesis and procedural

prerequisites are complied with, the notion of scope of exclusion could have relevance.

However, the scope-of-exclusion reply seems inapposite here. Disobedience in Situation 1

is warranted on account of an acute failure of the directive to correctly reflect the moral reasons

relevant to the issue being regulated. It is palpable, therefore, that where subjects defy such a

directive, they are doing this on the basis of a conviction regarding the main moral reasons

germane to the directive. Such reasons will fall under what Raz calls the dependent reasons, which

are alleged to be excluded. This may be illustrated by the artillery example described in the

previous Section.186 I supposed there that, under certain circumstances, an order is given to the

army to bombard two rebel-militants taking cover in an apartment block inhabited by three

hundred innocent civilians. The directive is issued by an empowered authority who is in charge of

the subject matter and is of the highest echelon in the country (i.e., the President who is also, in

this capacity, the commander-in-chief of the army). Thus, assuming with Raz that directives 186 Text accompanying nn. 95–97.

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issued by high-ranking officials may have a scope of exclusion broader than that of directives

issued by low-ranking officials, and, similarly, that the directive-issuer’s office or role may affect

the scope,187 in our example these factors, in themselves, allow the widest possible scope of

exclusion. Furthermore, it was postulated that in the relevant jurisdiction no positive legal

provisions (military or civil, including constitutional) capable of overriding such a Presidential

directive are in effect. Now, to reiterate,188 a reader might assert something like: “Such an

extremely immoral directive can never be authoritative,” and so he would see no point in

discussing this directive’s scope of exclusion. Confronted with such an argument, I would be

willing to quit the present line of enquiry. For, as was argued,189 such reasoning for lack of

authority, plausible as it may be, is in fact a content-based assessment of the directive’s

conformity with the balance of underlying reasons. Since such a resort to the balance of

underlying reasons is at odds with the pre-emption thesis, it might be, after all, worthwhile to

pursue further the current line of enquiry.

The aforementioned directive is clearly immoral in the extreme, and ought to be

disobeyed. Where subjects refuse to comply with this directive, they act for moral reasons

embedded in the value of human life,190 which requires curbing the use of military force in certain

ways. Being some of the main moral reasons relevant to military operational orders, these reasons

are surely what Raz calls dependent reasons and, accordingly, fall under the purported scope of

exclusion.

How does the foregoing argument relate to the argument advanced vis-à-vis Situation 2?191

Regarding Situation 2, I have failed to locate a criterion, consistent with the pre-emption thesis

(e.g., distinct from balancing reasons), that would indicate that reasons justifying disobedience in

cases such as Jane’s192 do not come under the definition of dependent reasons, i.e., “reasons which

already independently apply to subjects of the directives and are relevant to their action in the

circumstances covered by the directive.”193 The present argument concerning Situation 1, as

exemplified by the artillery example, does not merely point out the lack of a satisfactory criterion

affirming a conclusion to that effect. Rather, it also presumes that the reasons justifying

disobedience will be regarded by Raz as dependent reasons: for while reasons in favor of saving a

dying person can occasionally be “relevant to [subjects’] action in the circumstances covered by

the [mail-delay prohibition],” reasons embedded in the value of human life are often “relevant to

187 Text accompanying nn. 100–103, 143. 188 Text following n. 118. 189 Ibid. 190 Of both the majority members and the minority members. 191 Introduced in text accompanying nn. 46–47. 192 Text accompanying nn. 130–185. 193 Raz, MF, 47.

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[subjects’] action in the circumstances covered by [military operational orders].” Obviously, such

differences in frequency do not qualify as a criterion, and certainly not one that demarcates a sharp

divide between classes of reasons.194 At any rate, the discussion heretofore has been suggesting

that such definite classifications would fail to meet our challenge, and an appeal to convictions

about the balance of reasons, open-ended as this may be, loomed inescapable in our test cases. If

we think in these terms about the artillery example, we may presume that Raz’s own moral

convictions would not oppose the view that considerations embedded in the value of human life

are often some of the most pertinent reasons in respect of military operational orders, and so

constitute “dependent” reasons in this context.

A possible objection. It might be contended that cases such as the artillery example are to

be viewed differently; that is, where subjects disobey the order, they act for reasons not to take the

lives of innocent civilians. Even if the order-issuer possesses authority over the relevant domain

(internal security matters, measures against national threats and the like) and over the subjects in

question, this authority encompasses no power to exclude reasons not to take the lives of innocent

civilians. Hence, the objection proceeds, when contravening the order subjects act for reasons not

within the order’s scope of exclusion. This objection is doomed to fail. For one thing, the

contention that reasons not to take the lives of innocent people are not within the scope of

exclusion of the order (given our working assumption that the order is authoritative) is untenable.

Raz tells us that excluded reasons are the reasons against (or for and against195) the directive-act

that the authority was meant to consider. Therefore, to submit that reasons not to take the lives of

innocent civilians are unexcluded reasons would entail that the order-issuer, in our example, was

not meant to consider these reasons before issuing an order. Which is absurd.

To sum up this Section, reasons for which subjects contravene the directives in Situations 1

and 2 are purportedly excluded reasons or indistinguishable from purportedly excluded reasons,

and thus the scope-of-exclusion reply is incapable of reconciling the pre-emption thesis with these

situations.

194 Placing Situations 1 and 2 on that scale of frequencies would reveal that in between them, on that scale, lies a spectrum of situations where disobedience is justified. Drawing a scope of exclusion at a defined point on that scale is impractical, but primarily, as Situation 1 best illustrates, provides no parameter by which disobedience should be conditioned. 195 Raz, PRN, 192.

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IV. CLEAR WRONGNESS

Thus far the analysis has pointed out two types of situation where subjects ought, and are

likely, to disobey a directive for moral reasons. It has been argued that neither of these situations

can be accounted for by the pre-emption thesis through the no-authority reply or the scope-of-

exclusion reply. Both situations pertain to cases where to follow the directive is to engage in

conduct that is clearly immoral in the extreme. But, the fact that such wrongness is clear might

give rise to some further doubts regarding my arguments.196 These doubts revolve around the two

following propositions:197

1. As the wrongness involved in these situations is clear, identifying it and deciding to

disobey the directive does not require subjects to go through the underlying reasons (hereafter:

Proposition A).

2. Legitimate authority is limited by the condition that its directives are not binding if

clearly wrong (hereafter: Proposition B).

Proposition A resembles a proposition made by Raz;198 however, I shall suggest that, when

properly understood, this proposition does not call into question the argument advanced in the

present essay. Proposition B seems more pertinent to our matter, but I will argue that it offers no

adequate defense for the pre-emption thesis, being incoherent with that thesis. Moreover, Raz

himself eventually rejects it.

The wording “go through the underlying reasons,” as employed by Proposition A, can be

construed in two different manners: first, going through underlying reasons in the sense of acting

for these reasons. On this interpretation, Proposition A asserts that when one identifies a clearly

wrong directive and therefore refuses to obey it, the fact that such wrongness is clear entails that

one does not act for the underlying reasons. Second, going through the underlying reasons can be

understood as deliberating or reflecting on these reasons. On this interpretation, Proposition A

contends that in order to recognize a clearly wrong directive and refuse to obey it, one is not

required to engage in deliberation or reflection on underlying reasons, since the wrongness is a

clear one. The first interpretation renders Proposition A plainly false. If a fraternity freshman, for 196 A directive might be clearly wrong also in the sense that, due to a certain error or miscommunication, the act it prescribes is clearly different from what the directive-issuer intended to prescribe. As may be inferred from the previous Sections, Situations 1 and 2 are not necessarily cases of that type. (They might even be cases where it is clear that the relevant directive expresses precisely what the authority intends.) Hence, whatever bearings the fact that a prescribed act is clearly incompatible with the authority’s intention might have, they hold good only in some of the instances under Situations 1 and 2. 197 The reader might wonder why it is necessary to discuss further doubts, given that earlier on (text following n. 21; text accompanying nn. 54–60) it was submitted that the no-authority and scope-of-exclusion replies exhaust the possible rejoinders to our challenge. The answer is twofold: Proposition A (see main text above) does not actually oppose the argument put forward in this essay; Proposition B (ibid.), indeed, comes under the no-authority reply analytically but, being concomitant to the present Section’s subject matter, can be more conveniently discussed here. 198 Raz, MF, 62.

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instance, is told by the senior fraternity members to perform, as part of a “loyalty test,” an

egregiously hazardous act—say jumping off a high bridge into a shallow river—and he refuses,

surely he does so for the good reason to stay alive and well. What is true is that if the freshman is

of sound mind he would not have to extensively deliberate on the merits to see that he should

refuse to perform such a clearly wrong act. This is tantamount to the second interpretation

mentioned above, and so I take it that it is only this interpretation that Raz endorses (the context of

his remark provides some further indications to that effect). Now, out of the two foregoing

renderings, it is only the first and false one that could oppose the argument put forward in this

essay. I have not suggested that before subjects disobey in cases such as Situations 1 and 2, they

must thoroughly reflect on underlying reasons. The claim I have been concerned to make is that

when subjects refuse to obey in Situations 1 and 2 they act for underlying reasons;199 this may be

the case even where the directive’s deficiency is so clear that the degree of deliberation that

precedes one’s refusal to obey is negligible or where appeal to the merits of the case is rather

automatic.

The possibility of recognizing clear wrongness with no extensive deliberation on the

underlying reasons does not entail that subjects do not act for the underlying reasons where they

disobey the directive in such incidents. It is doubtful that Raz would deny this premise, as it seems

consistent with remarks of his acknowledging the distinction between reflecting on reasons, on the

one hand, and acting for reasons, on the other hand. One comment to that effect figures when he

refers to the difference between the level of conscious reflection on reasons and the logical

strength of reasons (note especially the paragraph’s ending):

The strength of reasons with which we are concerned is their logical strength. It differs from their phenomenological strength as measured by the degree to which the thought of the reason preoccupies a person and dominates his consciousness. The two may go together in the sense that sometimes the more the thought of a reason dominates the consciousness of a person the more likely he is to think that it is a strong reason. But this is not always the case; often the reverse is true. The logical and phenomenological notions of strength are not logically related and a person may believe that a reason is weak and not act on it in conflict even though he is aware that it fills his mental horizon.200

At various junctures, when discussing the exclusionary force of authoritative directives, Raz

stresses a similar point, i.e., that subjects can reflect on the merits—the reasons for and against a

directive—and yet these merits need not be part of their reasons for action.201 He also accepts that

199 For further discussion on the distinction between considering reasons and acting for reasons, and its relevance to Raz’s arguments, see Gans, “Mandatory Rules and Exclusionary Reasons,” supra, note 6, 387–390; Regan, “Authority and Value,” supra, note 6, 1113, fn. 43. 200 Raz, PRN, 25. Emphasis added. 201 Raz, MF, 39–40; Raz, The Authority of Law, supra, note 41, 26, fn. 25. See also Raz, “Facing Up,” supra, note 6, 1157.

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the reverse combination is possible, i.e., that the merits of an action may comprise subjects’

reasons for that action even where these merits are not consciously contemplated.202

Having discussed Proposition A, and before we turn to discuss Proposition B, an incidental

comment is in order: the foregoing considerations show that Proposition A offers no defense for

the pre-emption thesis against our challenge, but these considerations may also help to dispel a

potential misconceived objection to the weight-conception.203 The objection contends that the

weight-conception requires subjects to go into laborious and lengthy deliberation on moral reasons

before they can follow a legal directive; to impose such a burden on subjects would be subversive

to one of the significant advantages yielded by authority, i.e., its ability to facilitate and expedite

social activity by saving people the need to spend time and invest labor in contemplation of moral

questions in the course of their daily life. This charge seems to rest on a misunderstanding of the

weight-conception. According to the weight-conception, insofar as an authority possesses adequate

competence and is better situated to decide (i.e., the only case where we can speak of a legitimate

authority, according to Raz) its directives, qua authoritative directives, provide us reasons for

action (which Raz terms content-independent reasons). These reasons place weight on the balance,

so that, ceteris paribus, the balance tilts in favor of acting as the authority prescribes. In other

words, these reasons give rise to a (defeasible) presumption in favor of following authoritative

directives.204 Once the presumption is adopted, subjects can and should proceed with a general

disposition to follow the authority. They can and should normally follow the authority, including

when there is a doubt about what ought to be done or when the case is close. It is merely where

strong enough reasons to the contrary stick out like a sore thumb that subjects are required to defy

a directive. With this presumption as a guide to right reason, a hefty load is taken off their

shoulders. They need not engage in laborious moral calculations before every action. All they have

to do is to maintain an elementary familiarity with the merits, and to keep an eye open to see that

they are not being told to act in a way that is evidently and seriously wrong, in which case the

presumption is defeated.205

We may proceed to consider Proposition B, which contends that authority is restricted by

the condition that its directives are not binding if clearly wrong. If Proposition B is true then under

Situations 1 and 2 the directives in question are actually not authoritatively binding and so the pre-

emption thesis does not purport to apply in these situations.206 Nevertheless, it appears that an

202 Raz, “Facing Up,” supra, note 6, 1180: “Morigiwa identifies acting for a reason with action following conscious rational deliberation. In my view, people can internalize reasons and act on them automatically and instinctively.” 203 The weight-conception was sketched in text accompanying nn. 12–21. 204 n. 20. 205 Schauer, “Rules and the Rule of Law,” supra, note 20, 677, 679; Schauer, Playing by the Rules, supra, note 6, 91, 196–197, 204–205. Cf. Regan, “Authority and Value,” supra, note 6, 1113, fn. 43. 206 See n. 197.

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argument along these lines cannot be invoked as a further defense of the pre-emption thesis against

the objection posed in the previous Sections. Initially, Raz circumspectly stipulates that he

“wish[es] to express no opinion” on whether “legitimate authority is limited by the condition that

its directives are not binding if clearly wrong.”207 However, in an article emanating from a later

symposium on Raz’s work, Donald Regan invites Raz to tackle this issue.208 Regan introduces

what he calls the indicator-rule conception of authority. One trait of an indicator-rule is that it

ought to be ignored “in a particular case if one just happens to be able to see clearly that in that

case it leads to a wrong result.”209 For Regan this is applicable to authoritative directives, i.e., “if

the authority is clearly in error, its directives are not binding.”210 Such a proviso, according to

Regan, may well satisfy the rationale underneath the normal justification thesis,211 viz., optimizing

conformity with reason. For he holds that, in almost any model of decision-making capable of

explaining the measure of success people attain in taking everyday life’s simple decisions,

normally the probability of our deciding rightly corresponds positively to the degree to which the

choice seems clear to us.212 In Regan’s view, even if on the whole we are more likely to conform

to reason by following the authority than by acting alone, nonetheless, where it strikes us as

perfectly clear that a directive leads to a wrong outcome our chances of being right in observing

that are, for the most part, considerably improved.213 Therefore, refraining from following the

authority on this occasion may well be conducive to our overall conformity with reason.214

For a moment, Regan flirts with the idea of fitting the indicator-rule conception into the

scheme of the pre-emption thesis, in the sense that if one adopts an indicator-rule one is pre-

empted or excluded from acting merely on the merits of the case and ignoring the indicator-rule’s

input, but not in a stronger sense.215 However, Regan rightly suspects that his indicator-rule

conception, and the aforementioned sense of exclusion, is actually incongruent with the pre-

emption thesis as Raz conceives of it. Regan notes:

207 Raz, MF, 62. 208 Regan, “Authority and Value” supra, note 6. See also Perry, “Second-Order Reasons, Uncertainty and Legal Theory,” supra, note 6, 933–945, where the author discusses the notion of clear mistake and considerations for not deferring to the authority’s judgment if clearly wrong, under what he terms “epistemic limitations” on the deference one should show to authority. 209 Regan, “Authority and Value,” supra, note 6, 1010. 210 Ibid., 1030. Regan proposes certain refinements of the indicator-rule conception in the context of co-ordination-related directives (ibid., 1019–1031). 211 Ibid., 1013. He also suggests that it comports with Raz’s dependence thesis. 212 Ibid., 1089. See generally ibid., 1086–1095. 213 Ibid., 1086–1089. 214 Ibid., fn. 211. Perry seems to assume a similar notion. He notes that “an agent might maximize compliance with right reason by not deferring to the authority’s judgment” where he notices with a sufficient degree of certainty, which Perry terms the “epistemic threshold,” that the authority has erred (Perry, “Second-Order Reasons, Uncertainty and Legal Theory,” supra, note 6, 934, 935, 941). 215 Regan, “Authority and Value,” supra, note 6, 1015.

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Raz may mean, or want to mean, something more when he says authoritative utterances “exclude” other reasons than I mean when I say the same thing about indicator-rules.216 [Indicator-rules] are not reasons for not acting on other reasons which we know about, and can evaluate, without active inquiry. At least, they are not reasons-for-not-acting-on-other-reasons in a strong Razian sense… …I think there is nothing here that is exactly what Raz has in mind. He wants a stronger sort of preemptive force.217

For one thing, Regan anticipates that Raz may hold that authoritative directives are perfectly

opaque, i.e., barring action on the very reasons underlying them.218 If so, Raz may allow subjects

to challenge directives of an authority merely where they are faced with direct evidence of specific

procedural defects (e.g., where the directive is ultra vires or where the directive-issuer was

intoxicated when issuing the directive)219 or direct evidence of inferior competence possessed by

the directive-issuer in the relevant area, in which case the directive is actually devoid of an

authoritative source. Regan, conversely, insists that indicator-rules are not perfectly opaque to the

reasons underlying them,220 as the fact that a rule (even a good rule) may, on occasion, clearly fail

to satisfy the underlying reasons licenses departure from the rule on that occasion. This is a sense

in which subjects may act on the very reasons that an authoritative directive purports to reflect,

Regan suggests, whether or not procedural defects are involved and irrespective of the directive-

issuer’s expertise in the relevant area.221 What is more, Regan points out a fact that augments the

potential tension between the indicator-rule conception and the pre-emption thesis:

Perhaps it seems that we ought to be able to pin down the degree of transparency or opacity of the indicator-rules we have been discussing by means of higher-order rules about what circumstances justify one in abandoning or ignoring various first-order indicator-rules. This is a project we can begin, but not one we can complete. I do not deny that there may be useful higher-order indicator-rules. But we cannot have a complete and inviolable system of such rules which is totally nonprovisional, totally opaque. The reason is that there cannot be a finitely-statable

216 Ibid., 1015–1016. And yet he does not completely rule out the possibility that Raz would make a weaker claim (ibid., 1017). 217 Ibid., 1113, fn. 43. Perry too seems to conclude that his analogous conception of epistemic limitations of authority is at variance with the essence of exclusionary reasons, though for different reasons: “Epistemically-bounded reasons as a class… call for a familiarity with the underlying first-order reasoning which, because it can be quite extensive, is fundamentally at odds with what Raz views as the purpose of exclusionary reasons.” (Perry, “Second-Order Reasons, Uncertainty and Legal Theory,” supra, note 6, 944). 218 Regan, “Authority and Value,” supra, note 6, 1016 (main text and fn. 50). There are some further substantive differences between Regan’s indicator-rule conception and Raz’s pre-emption thesis: first, the indicator-rule conception itself does not support employing terms such as: one’s being obliged to obey authoritative rules, in any sense which is different from saying that one ought to follow these rules (ibid., 1020, 1030–1031; Regan, “Reasons, Authority, and the Meaning of Obey,” supra, note 22); second, Regan thinks that an authoritative rule (or the mere fact that a certain authoritative rule exists) is not itself a reason for action in the strict sense to which Raz is committed (Regan, “Authority and Value,” supra, note 6, 1022–1023, 1205, 1027–1028; Regan, “Reasons, Authority, and the Meaning of Obey,” supra, note 22). 219 Regan, “Authority and Value,” supra, note 6, 1016. 220 Ibid. (main text and fn. 50). 221 Ibid., 1016–1017. See further ibid., 1017–1018, 1030–1031, 1094.

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decision procedure which is the best decision procedure for us to follow in all contingencies. What this means is that the mode of operation of indicator-rules, as seen by the agent who uses them, must preserve a kernel of mysteriousness which cannot be eliminated… Just when one does ignore the rule is something we cannot specify finitely and completely. That is not, however, an objection to the model of indicator-rules. It is the price of caring about results and remaining potentially responsive to whatever situation the universe might confront us with.222

Hence, instances of rule-failure, where according to the indicator-rule conception rules should be

set aside, do not lend themselves to exhaustive specification in advance, and are irreducible to a

particular category of generic cases that could be isolated from all other cases. This entails that the

potential gap between Regan’s indicator-rule conception and Raz’s pre-emption thesis cannot be

bridged by means of adopting higher-order rules or defining a scope of exclusion, so as to mark a

priori classes of cases where exclusionary reasons apply and classes of cases where they do not

apply.

As Regan’s remarks suggest, under the qualification that authoritative directives are not

binding on occasions where they produce a clearly wrong result—which we have designated

Proposition B—authoritative directives cease to be opaque to their underlying reasons. Under this

qualification, there are some meaningful respects in which underlying reasons play a role in one’s

practical reason not merely on those occasions where the directive happens to lead to a clearly

wrong outcome, but rather across-the-board. For one’s compliance with authoritative directives

always remains conditional upon the merits of the case. Furthermore, while it is true that

recognizing clear wrongness does not require one to go into thorough deliberation on underlying

reasons, it does require one to keep the reasons relevant to one’s conduct in sight, and to maintain

at least some basic and crude familiarity with these reasons and a degree of readiness to refuse to

follow an instruction when it manifestly clashes with them.223

In light of the above, Proposition B appears to be at odds with Raz’s pre-emption thesis

and in affinity with the weight-conception. It is worth noting some additional senses in which

imposing Proposition B on the pre-emption thesis may bring the latter very close to the weight-

conception. Raz fleshes out by an arithmetical example the distinction between a clear mistake and

a great mistake: when calculating a long addition of numbers, one might make a mistake that is

small but easily observable. On the other hand, one might make a mistake that causes one’s

calculation to depart widely from the correct sum but is detectible only by means of laborious

222 Ibid., 1012. 223 See Schauer, “Rules and the Rule of Law,” supra, note 20, 677, 679; Schauer, Playing by the Rules, supra, note 6, 91; Perry, “Second-Order Reasons, Uncertainty and Legal Theory,” supra, note 6, 935, where the author notes: “[T]he identification of a clear mistake would seem to demand at least some familiarity with the underlying reasons,” while saying that “it would be unnecessary to go through [the underlying reasoning] in its entirety” (ibid.).

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scrutiny of the calculation’s various stages.224 There is no denying that a conceptual distinction

between clear and significant mistakes holds true, and may be especially applicable to certain

kinds of mistake. Nonetheless, when it comes to at least some senses of “clear mistake,” which are

pertinent to practical daily life decisions and to moral decisions, there will often be a correlation

between the degree to which a mistake is severe and the degree to which it is clear. We ought to

distinguish in this regard between various senses of “clear mistake” in practical reasoning. For

instance:225 first, a clear mistake about facts that are, in Razian terminology, auxiliary reasons,226

e.g., that it will rain today; second, a clear mistake about the existence or weight of facts that are,

as Raz labels them, operative reasons,227 such as certain values and desires, e.g., my desire not to

be soaked by the rain; and third, a clear mistake about the existence or weight of reasons that are,

for Raz, complete (operative, or operative plus auxiliary) reasons for action,228 e.g., my reason to

carry an umbrella today, or about the balance of complete reasons for and against an action. The

third type of mistake may consist of the first type or the second type, or both. Regarding mistakes

about operative reasons, and hence some of the mistakes about the balance of complete reasons,

the degree to which a mistake is clear will frequently correspond with the degree to which it is

severe. Where a reason for or against an action is very weighty, e.g., reasons to refuse an

instruction to take the life of an innocent human being, it will often tilt the balance of reasons more

acutely, and this is likely to be more salient and clear to us. There seems to be a connection

between the fact that taking the life of an innocent person is severely wrong and the fact that it is

clearly wrong. Even more so, the notions of severe wrongness and clear wrongness at times appear

to be interwoven and interchangeably used in our cognition and discourse. How does this indicate

that using Proposition B to qualify the pre-emption thesis would start driving it towards the

weight-conception? The answer is that, insofar as there exists in practical reasoning a correlation

between the severity of mistakes (or the weight of reasons to eschew them) and the degree to

which they are clear, cases where disobedience is called for according to the weight-conception are

likely to be cases of clear mistakes, in which Proposition B will permit disobedience as well.

The latter point is fortified when one notices some further ways in which the weight-

conception allows for the degree to which factors pertinent to decision-making are clear or certain.

In addition to clear mistakes about operative reasons, which were discussed in the previous

paragraph, clear mistakes about auxiliary reasons are also taken into consideration under the

weight-conception. Under the weight-conception, a subject maintains “access” to underlying

224 Raz, MF, 62. 225 For another possible classification of “clear mistakes”, see Perry, “Second-Order Reasons, Uncertainty and Legal Theory,” supra, note 6, 934–935. 226 Raz, PRN, 34–35. 227 Ibid., 33–34. 228 Ibid., 22–25, 33.

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reasons,229 and so inasmuch as he envisages auxiliary reasons against the rule-act—i.e., present

factual conditions that render the rule-act impossible, pointless or undesirable—this will reflect on

the balance of reasons; the clearer these auxiliary reasons, the more they would militate against

following the rule (though, if the authority’s mistake is clear but not severe, compliance with the

relevant rule may still be appropriate in view of additional considerations, such as the adverse

effect that noncompliance might have on the general efficacy of authoritative rules). Thus, while

the pre-emption thesis, when qualified by Proposition B, is rendered responsive to local incidents

of clear mistakes, such responsiveness is built into the weight-conception, which again signifies

that this qualification will bring the pre-emption thesis very close to the weight-conception.

Our discussion thus far supplies a number of indications denoting that the qualification

expressed in Proposition B is not apt to offer the pre-emption thesis a defense that would

sufficiently maintain the thesis’s core distinctive traits. With this in mind, let us turn to view Raz’s

own position towards Proposition B. Raz’s stance can be gleaned from his rejoinder to Regan’s

attempt at showing that the case for exceptionless deference to authority cannot be generalized.230

Raz acknowledges that this is “an interesting argument which, if successful, undermines the [pre-

emption] thesis.”231 However, he rejects this argument and refrains from concluding in a general

way that clearly erroneous directives are, as such, not binding. Regan, in Raz’s view, wrongly

deems it true, a priori, that such a qualification for the most part satisfies the rationale behind the

normal justification thesis, i.e., attaining optimal conformity with reason. Raz furnishes the

following explanation:

The one substantive difference of opinion between us [i.e., Regan and Raz] revealed by this discussion lies in Regan’s suggestion that it would be reasonable for people in the situation envisaged in my example, who lack any further information [i.e., information showing that in the relevant subclass of cases their judgment is better than the authority’s], to adopt a policy of following their own judgment when they feel that the case is clear and following the authority when they are less clear, or when they feel that the case is close. Regan thinks it is a priori true that, for the most part, people make more mistakes in the latter type of cases than in the former. I doubt this assumption in this general form. I tend to think that it holds good only where people have a good enough grasp of what determines the correctness of decisions, or where they are lucky enough to have discovered a good correlate of correct decisions even though they have a poor understanding of what accounts for the correctness of their decisions. In other cases, especially in cases in which they hold mistaken beliefs about the matter they decide on (as when they have a wrong belief about the relations between inflation and the value of shares, or where they hold some astrological theory about the

229 In the sense that he acts on these reasons, he is not merely allowed to deliberate on them. 230 Regan, “Authority and Value,” supra, note 6, 1086–1095. 231 Raz, “Facing Up,” supra, note 6, 1194.

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success of wars), there is no reason to believe that there is a positive correlation between seeing the matter as clear and a likelihood of being right.232

Raz, therefore, disavows Proposition B in its general form, and this further reinforces our inference

that Proposition B is not to be invoked as a defense for the pre-emption thesis against the objection

put forward in previous Sections.

From Raz’s perspective as expressed in the preceding quotation, that people are less likely

to err insofar as the choice seems clear to them is true only under certain conditions, but not in

general. This assumption is more qualified than the one underpinning Proposition B. Still, one may

wonder whether the qualified Razian assumption leaves room for disentangling our riddle

regarding Situations 1 and 2. However, it appears that the riddle endures. Raz points out in the

above-quoted passage a certain standard of decisional reliability that he deems necessary for

establishing a positive correlation between seeing the matter as clear and the likelihood of being

right. The standard, according to Raz, is met only where “people have a good enough grasp of

what determines the correctness of decisions, or where they are lucky enough to have discovered a

good correlate of correct decisions.”233 For the sake of brevity, I shall henceforth dub this standard:

Standard X of Reliability.

Now, Standard X of Reliability, as formulated by Raz, appears to involve some difficulties.

Visibly, Raz conceptualizes Standard X of Reliability as higher than a standard that is met by

people who, while possessing normal mental capacities and common knowledge, have no special

knowledge or particularly good intuitive insights pertaining to the relevant domain. This, however,

turns out to be problematic when we bring to mind Situations 1 and 2. Think of very clear cases,

such as the examples discussed earlier of a soldier disobeying a directive to fire at innocent

people,234 or a mail carrier contravening a directive forbidding postal delay as she rushes a dying

person to the hospital.235 Must subjects possess any special knowledge or particularly good

intuitive abilities pertaining to these contexts in order to tell that following a directive in such

circumstances is seriously wrong? Our soldier indeed may have some special knowledge or

intuition pertaining to military matters and perhaps even ethical matters, but need he have some

such special knowledge or intuition to realize that he should not fire at innocent people?236 Must

the mail carrier possess medical expertise or special information regarding postal service policy

and administration to appreciate that in her situation she ought to act in order to save a person who

is, on the face of it, critically injured, at the expense of a temporary setback of mail delivery? A

positive answer would be strongly counterintuitive. For we sense that some wrongs are so obvious 232 Ibid., 1195. 233 Ibid. 234 Text accompanying nn. 95–99. 235 Text accompanying n. 130. 236 Including in cases of grossly excessive collateral damage as the one I described (text accompanying nn. 95–97).

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that they are likely to be recognized by anyone who retains minimal alertness and familiarity with

his normative environment and who possesses elementary mental capacities and common

knowledge.237 (While people who do not meet such a minimal standard do exist, the theory of law

should doubtfully be made in line with their deviant outlook.) It is unlikely that Raz would endorse

a positive answer to the foregoing questions.238 A negative answer, however, appears like a

concession of Regan’s view depicted earlier, which threatens to defeat the very essence of the pre-

emption thesis.

There seems to be yet another, related, difficulty with Standard X of Reliability. Further to

the above-quoted paragraph, Raz notes that “[w]hen one does have an account of what makes a

decision right [i.e., when one meets Standard X of Reliability] then one may well have the

additional information required to indicate in what subclass of cases the other person is worse than

oneself,”239 in which case the normal justification thesis is not met in that subclass. However, by

this Raz also appears to imply that it is possible (even if not likely) that a subject would meet

Standard X of Reliability in contexts where the normal justification thesis is met as well. This

possibility means that at least some subjects are allowed to act on reasons underlying a directive

even where the directive-issuer complies with the normal justification condition, an allowance that

seems to be inharmonious with the principle of opacity of authoritative directives or, in other

words, the idea that they are exclusionary reasons. What is more, an assertion that, no matter how

clear-cut the case is, the latter allowance may apply merely to certain subjects and cannot be

generalized sounds counterintuitive, as indicated above.

To conclude this Section, I began by discussing the proposition that identifying cases

where a directive clearly leads to a wrong outcome does not require subjects to “go through” the

underlying reasons. I suggested that, when properly understood, this proposition does not oppose

the argument advanced in this essay. I then turned to rule out a potential objection predicated on

the proposition that authority is curbed by the condition that clearly wrong directives are, as such,

not binding. This proposition appears to be incompatible with the gist of the pre-emption thesis,

and is rejected by Raz. The foregoing conclusions, if correct, suffice to secure the argument in the

face of doubts emanating from the fact that Situations 1 and 2 are cases of clear wrongness.

237 N.B.: All that one needs to recognize, for our purpose, is that following the directive would be extremely wrong, i.e., a very bad possibility in comparison to other possible courses of action. One is not required to know what is the best thing to do is, i.e., which of the other possibilities is the optimal one. 238 And indeed some comments of his can be interpreted to that effect: see, for example, text accompanying n. 54. 239 Raz, “Facing Up,” supra, note 6, 1195.

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V. CONCLUSION

It is easy to appreciate the pre-emption thesis’s appeal. It offers a straightforward

explanation of how authoritative law bears on practical reason, which, if correct, may dissolve

some apparent tensions between the operation of legal authorities and the dictates of reason

incumbent on individual agents. My aim in this paper, however, has been to show that this

explanation is, in the end, unsustainable. Let us take stock of the various observations made here.

There seem, prima facie, to be two chief tenable alternatives for explaining the way

authoritative law bears on practical reason (assuming that it does bear on practical reason in some

way): first, authoritative law provides pre-emptive reasons, i.e., in addition to giving reasons for

action it gives reasons that exclude opposing background reasons; second, authoritative law gives

rise to reasons that compete with opposing reasons by means of their weight. In some cases (quite

possibly, many) either background reasons and legal reasons will not be in conflict at all, or,

where such a conflict arises, background reasons against the act prescribed by a legal authority

will be less weighty than the legal reasons the authority provides. In these cases, obviously, the

respective practical results—i.e., what ought to be done—entailed by the pre-emption thesis and

the weight-conception will be similar. These “overlap cases,” then, do not help us to see whether it

is a pre-emptive force or the weight of reasons that determines what we ought to do in the

presence of legal authoritative directives. Instead, the most revealing cases for our purpose are

those in which background reasons that militate against the directive-act are weightier than all

reasons in favor of it.

I have focused on two groups of cases in which the reasons against following the directive

are straightforwardly more compelling than any other present reason: in Situation 1 subjects are

faced with a directive that is clearly immoral in the extreme. In Situation 2, though the directive is

not itself reprehensible, under the circumstances following it would clearly be an extremely wrong

thing to do. In both situations subjects should (and plausibly would) disobey the directive—acting

for moral reasons. Whereas this result is easily explicable by the weight-conception, it will

contradict the pre-emption thesis, unless it can be shown either that directives in Situations 1 and 2

are not authoritative ones, or that the reasons for defying directives in these situations are not

within the scope of excluded reasons.

The no-authority reply falls short of resolving the ostensible contradiction between the pre-

emption thesis and Situations 1 and 2; no criterion is able to rule out the possibility that a directive,

in these situations, would be authoritative unless lack of authoritativeness is grounded on the

directive’s failure to reflect the underlying reasons, a ground inconsistent with the pre-emption

thesis. The scope-of-exclusion reply fails to square the pre-emption thesis with Situations 1 and 2;

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again, no criterion is capable of sustaining a conclusion that reasons for defying a directive, in

these situations, are not within the scope of exclusion, or at least no criterion is capable of

sustaining that conclusion without undermining the pre-emptive thesis. Situations 1 and 2 (or at

least some of the cases they embrace) are counter-examples to the pre-emption thesis. While this

suggests that the thesis as it stands is flawed, credence is lent to the alternative model, i.e., the

weight-conception, as this model seems well suited to account for these situations.

Whereas, in the justificatory sense, the main foundation upon which the pre-emption thesis

rests seems to be the normal justification thesis,240 the counter-examples detected here denote that,

at least in the legal context, some unavoidable factors render the move from the normal

justification thesis to the pre-emption thesis impossible. Some of these factors were alluded to

throughout our discussion:241 (1) human fallibilities and structural weak points in the workings of

complex bureaucratic systems entail that local functional failures of law will occur, however

competent the authority is. (2) Since law is often formulated in a general manner and applies to a

multiplicity of situations and individuals, even where no human or institutional failure is involved,

circumstances of rule-failure are bound to occur. (3) Conceivably, in the case of some such failures

obedience may result in intolerably immoral consequences; when recognizing such a case subjects

must refuse to follow the authority. (4) Such cases resist any attempt of capturing them under a

specific category of circumstances or by way of adopting higher-order rules; the possibility of their

occurrence can never be eliminated from consideration. (5) In view of the foregoing, attention

should be drawn to a distinction between capacity to decide rightly ex ante from the directive-

issuer’s standpoint and capacity to observe correctly a local failure of a directive, when occurring,

from the standpoint of a subject being situated in that particular event. (6) Insofar as such a failure

is very clear, for the most part, subjects are more likely to observe it correctly.242 (7) Insofar as

such a failure is severe it is more likely to be clear. These considerations, it seems to me, pose

some inexorable obstacles for the reasoning leading from the normal justification thesis to the pre-

emption thesis.

Although this essay proposes a self-contained argument against the pre-emption thesis as it

stands and in favor of the weight-conception, there is much related substance that it does not

cover. Various difficulties lie ahead of the weight-conception—difficulties that must be considered

if we are to learn more about the intricate ways in which law and practical reason interrelate.

240 See for example Raz, EPD, 214–215; Raz, MF, 41–42, 46–47, 57–59; Raz, PRN, 193–195; Raz, “Reasoning with Rules,” supra, note 61, 15. 241 Some are also mentioned by Raz (see for example text accompanying n. 95). 242 See text accompanying nn. 209–214, 230–239.