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

Joseph Raz’s theory of authority has become influential among moral, political, and legal philosophers. This article will provide an overview and accessible explanation of the theory, guiding those coming to it for the first time as to its theoretical ambitions within the wider issues of authority, and through its intricacies. I first situate the theory among philosophical examinations of authority, and then explain the theory itself in detail.

In this paper we consider whether a pragmatics of semantic content can be a useful approach to legal interpretation. More broadly speaking, since a pragmatic conception of meaning is a component of inferential semantics, we consider whether an inferentialist approach to legal interpretation can be useful in dealing with some problems of this important aspect of law. In other words, we ask whether Legal Inferentialism is a suitable conception for legal interpretation. In Section 1 we briefly consider the semantics/pragmatics debate (...) in contemporary philosophy of language and in relation to legal interpretation. In Section 2 we discuss the relations between a pragmatics of semantic content and an inferentialist conception of content. In Section 3 we consider how Inferentialism can be applied to legal interpretation. Finally, in Section 4 we consider some possible advantages and drawbacks of Inferentialism applied to legal interpretation and adjudication. (shrink)

Much of the work in contemporary jurisprudence is done on the assumption that legal philosophy should find the set of necessary and sufficient conditions that something must have in order to count as law. This essay challenges this view. It examines in detail two versions of this view: the first is the view that jurisprudence should find the necessary features of law and then, from among them, those that are “important” for understanding law. I argue that these two features are (...) in tension with each other, and that there are good reasons for thinking that an account that tries to discover the important features about law will not limit itself only to those features that all laws necessarily possess. The second version is one that tries to discover what necessarily belongs to “our” concept (or practice) of law by looking at those features that participants in the practice of law deem most important about it. I argue that this argument is indeterminate because it has no non-circular standard of defining what belongs to “our” concept of law. I then offer an alternative role for jurisprudence that focuses on trying to solve certain puzzles about law, such as explaining how a social practice can create binding norms. Answering questions of legal philosophy does not require finding what features all laws necessarily possess while maintaining a role for jurisprudence alongside other interdisciplinary approaches to law. (shrink)

In this paper we consider whether a pragmatics of semantic content can be a useful approach to legal interpretation. More broadly speaking, since a pragmatic conception of meaning is a component of inferential semantics, we consider whether an inferentialist approach to legal interpretation can be useful in dealing with some problems of this important aspect of law. In other words, we ask whether Legal Inferentialism is a suitable conception for legal interpretation. In Section 1 we briefly consider the semantics/pragmatics debate (...) in contemporary philosophy of language and in relation to legal interpretation. In Section 2 we discuss the relations between a pragmatics of semantic content and an inferentialist conception of content. In Section 3 we consider how Inferentialism can be applied to legal interpretation. Finally, in Section 4 we consider some possible advantages and drawbacks of Inferentialism applied to legal interpretation and adjudication. (shrink)

The central argument of this article turns on the dual‐nature thesis. This thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical dimension. The dual‐nature thesis is incompatible with both exclusive legal positivism and inclusive legal positivism. It is also incompatible with variants of non‐positivism according to which legal validity is lost in all cases of moral defect or demerit (exclusive legal non‐positivism) or, alternatively, is affected in no way at (...) all by moral defects or demerits (super‐inclusive legal non‐positivism). The dual nature of law is expressed, on the one hand, by the Radbruch formula, which says that extreme injustice is not law, and, on the other, by the correctness argument, which says that law's claim to correctness necessarily includes a claim to moral correctness. Thus, what the law is depends not only on social facts, but also on what the law ought to be. (shrink)

The main thesis of this article is that Kant’s concept of law is a non-positivistic one, notwithstanding the fact that his legal philosophy includes very strong positivistic elements. My argument takes as its point of departure the distinction of three elements, around which the debate between positivism and non-positivism turns: first, authoritative issuance, second, social efficacy, and, third, moral correctness. All positivistic theories are confined to the first two elements. As soon as a necessary connection between these first two elements (...) and the third element, moral correctness, is established, the picture changes fundamentally. Positivism becomes non-positivism. There exist two kinds of connections between law and morality: classifying and qualifying connections. This distinction stems from different sorts of effects that moral defects give rise to. A classifying connection leads to the loss of legal validity, whereas a qualifying connection leads only to legal defectiveness. In Kant’s theory of law both connections are found. The qualifying connection is conspicuous throughout Kant’s theory of law, whereas the classifying connection, by contrast, is rare and well hidden. This will suffice to consider Kant as a representative of inclusive non-positivism. (shrink)

Legal positivism lacks a comprehensive theory of legal obligation. Hart's account of legal obligation, if successful, would explain only how the rule of recognition obligates officials. There is nothing in Hart's account of social obligation and social norms that would explain how the legal norms that govern citizen behavior give rise to legal obligations. However, we cannot give a theoretical explanation of the concept of legal obligation without a theoretical explanation of the concept of obligation. If legal, social and moral (...) obligations are three instances of the kind defined by “obligation,” then we cannot successfully explicate the nature of legal, social or moral obligations without a successful general conceptual theory of obligation. In what follows, I attempt to develop what I take to be the central elements of the general concept of obligation. I argue that obligations are (1) associated with mandatory prescriptions; (2) reasons for action; (3) exclusionary in the sense that certain reasons are excluded as an excuse of justification for non-performance; and (4) “binding” in the sense that they have a special normative force. At the end of the paper, I briefly argue that our shared concept of obligation is indeterminate with respect to one theoretically important case, the issue of whether the rules of a crime gang that includes some sort of rule-defining procedures for making rules governing members obligate gang members if accepted as legitimate by the members. (shrink)

The thesis that law necessarily claims authority is popular amongst legal philosophers. Some distinguished legal philosophers, including the late John Gardner, Joseph Raz and Scott Shapiro, have suggested that support for this thesis is found in legal officials’ use of deontic language. This article begins by considering the merits of this suggestion. I discuss two unpromising arguments for the claim thesis based on the use of deontic language in law. I then suggest that a more plausible basis for the claim (...) thesis lies in the felicity conditions of the speech acts that legal officials perform. In the absence of an explicit claim to authority, legal officials make a presupposition to authority over their subjects. The presupposition arises from interaction between the felicity conditions of legal speech acts and basic norms of cooperative communication. I consider some implications of this conclusion for our understanding of legal authority. (shrink)

That two theories of law are different does not imply that they differ in all aspects. Far more likely is the opposite state of affairs, namely, that there are some common points along with some points of disagreement. I will start with three points in which there seems to be at least some connection between Joseph Raz’s opinions and my own. In a second step, I will consider what is, perhaps, the most fundamental difference.

The aftermath of the European refugee crisis can be said to have sparked a crisis of solidarity. Despite abundant demonstrations of solidarity with refugees and asylum seekers, what many saw as an exercise of their duty to help was made illegal. The critical term that emerged to refer to this conjuncture was “criminalization of solidarity”. In order to include this term in the academic debate, this article starts by disclosing the embedded claims present in its rhetorical usage. The article then (...) scrutinizes the design of the politics of criminalizing solidarity and its consequences. It argues that at least three aspects of the politics of criminalizing solidarity plausibly indicate the possibility that regulating the aid in question will produce and reinforce consequences for the EU that are not only unintended, but also damaging. This is because, first, what I refer to as the blending aspect might spread the perception of illegality among several types of immigrants; second, the moral aspect can discharge people from their duty to help foreigners by conditioning this duty to group membership and belonging; and third, the polarizing aspect might exacerbate the existing divide between citizens and immigrants currently causing conflicts and social fragmentation. (shrink)