Between Authority and Interpretation: The Scope of Morality in Raz’s Account of Law

Abstract

Joseph Raz calls our attention to the conceptual link between legal norms and reasons for action. We cannot understand what legal norms are without understanding their role in our practical reasoning as protected reasons for action. In this paper, I want to challenge some of Raz’s theses on legal reasoning, with his theory of law as background. Raz argues that legal interpretation and judicial adjudication are both fundamentally open to moral argument, where the voice of the legitimate legal authority is just a first voice. I think this idea clashes with the main theses that frame his theory of law. My argument is that Raz argues that even when law is effectively authoritative and settled (it is not indeterminate), judges have the power to change it based on certain reasons (excluded for the citizen, such as justice) and that, sometimes, they must change it (if the balance of reasons to change the law defeats the reasons to leave it as it is). My thesis is that this power of judges to review the law based on reasons that are excluded for citizens is incompatible with accepting the moral authority law claims to have. Raz’s conception of law states a dilemma: either law is authoritative for judges and they cannot change it, or judges can change it but then it is not authoritative for them.

For very helpful comments to previous versions of this writing and friendly conversations, I would like to thank Ricardo Caracciolo, Cristina Redondo, Gerald Postema, Margaret Martin, Dimitrios Kyritsis, Kenneth Himma, Ezequiel Monti, Lewis Kornhauser, Juan Carlos Bayón, Larry Alexander, Horacio Spector, George Letsas, Fernando Tesón, Thomas Bustamante, Alexander Green, Simon Palmer, Rodrigo Sánchez Brigido, Alejandro Chehtman and Fabio Ortiz Pulido. I also want to especially thank Jorge Luis Fabra-Zamora and Gonzalo Villa Rosas for their suggestions and invitation to be part of this book.