In  Authority: Revisiting the Service Conception,  Joseph Raz reflects on his work on the nature of authority, defending much of what he has written on the subject, while offering some additional clarifications and modifications. I must leave to others a more direct assessment of Raz\u27s views on authority, and the revisions he has suggested in this most recent paper. I will instead focus on some of the methodological considerations he discusses in this paper; in particular, I will compare and contrast Raz\u27s discussion here about conceptual analysis and the concept of authority with his recent analyses of the conceptual analysis of law

Bix, Brian

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Raz, Authority, and Conceptual Analysis

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Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2006 Raz, Authority, and Conceptual Analysis Brian Bix University of Minnesota Law School, bix@umn.edu Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles  Part of the Law Commons Recommended Citation Brian Bix, Raz, Authority, and Conceptual Analysis, 50 AM. J. JURIS. 311 (2006), available at https://scholarship.law.umn.edu/faculty_articles/449. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact lenzx009@umn.edu. RAZ, AUTHORITY, AND CONCEPTUAL ANALYSISBRIAN H. Bix*I. INTRODUCTIONIn "Authority: Revisiting the Service Conception,"' l Joseph Raz reflects onhis work on the nature of authority, defending much of what he has written onthe subject, while offering some additional clarifications and modifications.I must leave to others a more direct assessment of Raz's views on authority,and the revisions he has suggested in this most recent paper. I will insteadfocus on some of the methodological considerations he discusses in this paper;in particular, I will compare and contrast Raz's discussion here aboutconceptual analysis and the concept of authority with his recent analyses ofthe conceptual analysis of law.II. THE CONCEPT OF AUTHORITYRaz reaffirms roughly the same view of authority he has been advocatingfor over 25 years.2 Raz argues (here I summarize a detailed argument ingeneral terms) that we are justified in subjecting our will and judgment toanother when (1) we are more likely to do the right thing by doing so than weare by deciding for ourselves; and (2) this is not a matter for which there arespecial reasons making it important that we decide for ourselves.'I want to explore Raz's views about the concept of authority. Raz writes:I keep referring to 'our' concept of authority. But is there such a thing? Arethere not several concepts, all of them descending from the very same ancestors?Most probably so. Each person when using the concept of authority uses hisconcept, and should allow for the possibility that there are several.4* I am grateful to Joseph Raz and Dennis Patterson for comments on an earlier draft.1. Joseph Raz, "Authority: Revisiting the Service Conception" (unpublished manuscript),presented at the Conference, "Natural Law and Natural Rights in Contemporary Jurisprudence,"Princeton University, September 2005. A version of that paper is forthcoming in the MinnesotaLaw Review.2. See, e.g., Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), 3-27;Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 38-69; Joseph Raz,Practical Reason and Norms (Princeton: Princeton University Press, 1990), 62-65, 191-194;Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994), 194-221.3. Raz, supra, note 1.4. Ibid.THE AMERICAN JOURNAL OF JURISPRUDENCEHe adds:Needless to say, if there are a number of concepts of authority prevalent in asingle society they are likely to be competitors. The boundaries between themare fluid, and those who use each claim merit for it, and (when aware, if onlydimly, of the existence of the others) find reason to prefer it to the others. Thismeans that each explanation of a concept can also be used in the battle ofconcepts, where there is such a battle, that is it can be used to advocate themerits of one concept over its competitors.'For Raz, the different conceptions of (legitimate6 ) authority are alternativeanswers to the normative question, "when (if ever) is it justified not to seekone's own best understanding of what should be done, but rather to actaccording to the direction of another?"7At first, there may seem something strange about equating a concept withthe answer to a moral question, but it may be that an equation, or closeconnection, between a concept and a normative inquiry is inevitable when theconcept is an evaluative term, like "good," "just," or "authoritative."In his paper, Raz allows that perhaps we once had a distinctly differentconcept of authority. The example Raz gives (legitimate governmentalauthority derives from divine authority) 8 describes a time when people gavea different answer to the normative question underlying "(legitimate)authority"-and one that most of us would now consider clearly wrong. Theidea of competing concepts of authority may show that within Raz's analysisone might have a slightly loosened connection between the concept and thenormative question, analogous to the general distinction between criticalmorality and conventional morality: there are competing concepts ofauthority, and changing concepts over time, as the conventional (but quitefallible) beliefs about the normative inquiry change.5. Ibid.6. For Raz, "de facto authority" is parasitic on the concept of legitimate authority, for itinvolves an entity claiming, but claiming falsely, to be a legitimate authority.7. This draws on Robert Paul Wolff's famous challenge, from In Defense of Anarchism(New York: Harper & Row, 1970).The statement in the text may well be too simple, in at least one way. Central to Raz'sview of authority (and one of the main grounds for criticism of it), and a point that goes beyondwhen a person or text is authoritative, is the role (for Raz, exclusionary and preemptive) thatauthorities do or should play in our practical reasoning.8. Raz, supra, note 1.Vol. 50BRIAN H. BIXIll. CONCEPT(S) OF LAWI think it is instructive to compare Raz's current discussion of the conceptof authority with what he has written about the concept of law.Raz has argued that legal theories are theories of our concept of law.9 Onemight first ask: why should we study the concept if we can study the thingitself (the practice, the type of institution) instead? Raz's answer is to denythat the two can be separated;"° He argues that explaining the concept of lawis close to, but not identical with explaining the nature of law, but it is thelatter which is the primary task of legal theory.l" And the concept of law isrelevant primarily as it reflects the way people perceive the law.2Raz rejects the notion that we (as theorists) can choose a concept of lawbased, say, on its fruitfulness in further research,1 3 or even according to itssimplicity or elegance; 14 rather, it is a concept already present, already part ofour self-understanding. 5Some might argue that the proper study of law-a social institution-isthrough social theory. However, how can one have a (purely) "sociological"or "empirical" theory of law if one does not have at least a rough prior notionof what is or is not "law"? 6 There is a sense in which conceptual work mustbe prior to empirical work. The focus of conceptual analysis is on theboundaries of the category-here, what makes something "law" or "not law."And this is not an empirical question in the same way as, say, investigatingpatterns of judicial decision-making is an empirical question.179. See Joseph Raz, "Two Views of the Nature of the Theory of Law: A PartialComparison," Legal Theory 4 (1998) 249, 276; see also Joseph Raz, "On the Nature of Law,"ArchivfiirRechts- und Sozialphilosophie 82 (1996) 1; Joseph Raz, "Can There Be a Theory ofLaw?," in The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Martin P.Golding and William A. Edmundson (Oxford: Blackwell, 2005), 324-342.10. See, e.g., Raz, "Can There Be a Theory of Law?," 326, 331.11. Ibid., 326-28.12. Ibid., 328, 331.13. Raz, Ethics in the Public Domain, 221.14. Raz, "Can There Be a Theory of Law?," 331.15. While Raz asserts that the concept of law "exists independently" of the legal philosophywhich attempts to explain it, Raz, "Two Views of the Nature of the Theory of Law," 280-81,he also argues that since the concept(s) of law are in flux, our theories of law, even mistakentheories, could influence the concept of law future generations have. Raz, "On the Nature ofLaw," 7.16. Cf. Frank Jackson, From Metaphysics to Ethics: A Defence of Conceptual Analysis(Oxford: Oxford University Press, 2000).17. Though it is open to someone to argue that the category lines are in fact based onempirically testable data: e.g., linguistic usage tendencies within a community.2005THE AMERICAN JOURNAL OF JURISPRUDENCEWhile Raz's recent writings seemed to imply or assume a view that we allshare a single concept of law, 8 at the Conference, in response to an earlierversion of this Comment, Raz denied that he held that view. He stated that heis not committed to there being only one concept of law in a country, though"given the centrality of legal institution[s] in our societies it seems likely thatmost articulate people share a concept of law. ' 9A classical Platonist would likely assert that there is only a single Idea of"law," of which our various legal systems are imperfect manifestations.However, Platonism is a metaphysical position that many people find unlikely,at least when applied to social practices and institutions. It is not hard to findtheorists who seem to support view that there are multiple, competing con-cepts of law.20 How should we determine whether there is one or many con-cepts of law?Raz is correct that the mere fact of divergence in beliefs about law or in theapplication of the term/concept is insufficient to prove that there are multipleconcepts. As Raz states, such divergence may be explicable by mistake,partial knowledge, vagueness in the concept itself, etc.2' And the fact that wecan talk about "law" without all of us always talking past one anotherindicates that there is at least an overlap in the concepts (if there are more thanone), but this fact by itself certainly does not make the case for a singleconcept conclusive.It is tempting to say that concepts of law would be kept from multiplyingin a way that concepts of authority would not, by the fact that a concept of lawmust fit institutional practices, while there seems no comparable constraint ona concept of authority. This initially promising line of argument does notseem likely to hold up,22 however, in that, for both law and authority, the18. Raz refers repeatedly to "the concept of law," e.g., Raz, "Two Views of the Nature ofthe Theory of Law," 280-81 (emphasis added), and also note the singular "the concept" and "ourconcept" throughout the relevant writings. E.g., Raz, "On the Nature of Law," 4 (emphasisadded).19. This language is from a subsequent e-mail to me from Joseph Raz, Sept. 27, 2005,confirming the position he took at the Conference.20. Consider, e.g., the view of Stephen Perry, who argues that there is more than onetenable theory of the nature of law, grounded on different tenable theories about the purpose oflaw. See Stephen R. Perry, "Interpretation and Methodology," in Law and Interpretation, ed.Andrei Marmor (Oxford: Oxford University Press, 1995), 97-135; Stephen R. Perry, "TheVarieties of Legal Positivism," Canadian Journal of Law and Jurisprudence 9 (1996) 361. Onecould easily re-characterize those claims as asserting that there are alternative concepts of law.21. See Raz, "Authority: Revisiting the Service Conception"; Raz, "Can There Bea Theoryof Law?," 326-327.22. At the Conference, Raz disagreed, commenting that the connection between the conceptof law and actual legal practices was in fact a reason for believing that it is somewhat moreVol. 50BRIAN H. BIXquestion is one of category boundaries: how can we tell whether somethingis law or not, or whether something is authoritative or not? In each case, wehave guidance from practice and linguistic usage, but conceptual analysisinvolves the philosophical prerogative to clarify and modify existing practices.If there are multiple tenable concepts of law, (a) on what basis do or shouldindividuals choose among them?; and (b) on what basis should legal theoristschoose in constructing their theories of law? In the jurisprudential literature,there is discussion of the second question (whether such selections must bemade on robustly normative grounds, or can be made on meta-theoreticalgrounds and on related considerations that are evaluative, but not moral orpolitical),23 but little if anything on the first inquiry. I think the possibilityand implications of competing concepts of law requires further consideration.IV. THE CHALLENGE FOR CONCEPTUAL ANALYSISThere are tensions surrounding all conceptual claims within analytical legal(and moral and political) theory. Any such claim, whether applied to"authority" or to "law" or to some other subject, can be met by criticism fromone side, that it should be supplanted by empirical or sociological investiga-tion, and criticism from another side, that it needs to be supplemented bymoral or political selection and argument.24If we are trying to discover what "our concept" is-of authority, law, or(say) honor-why would we consult a philosopher rather than, say, a pollster,a linguist, or a sociologist?25A concept is a category of thought by which we divide up the world. Thequestion is, why should we care about the nature of these categories, of thisway of dividing up the world, if they do not correspond to some ultimatelikely for law than for authority that we have only a single concept rather than competingconcepts.23. For arguments that meta-theoretical grounds would suffice, see, e.g., Raz, Ethics in thePublic Domain, 219-21; Jules Coleman, The Practice of Principle (Oxford: Oxford UniversityPress, 2001), 197-210; Andrei Marmor, "Legal Positivism: Still Descriptive and MorallyNeutral," USC Legal Studies Research Paper No. 05-16, http://ssm.com/abstract=763844; forcontrary views, see, e.g., the Perry articles cited in note 20.24. For the latter critique, see, e.g., John Finnis, "Law and What I Should Truly Decide,"American Journal of Jurisprudence 48 (2003) 107, 125-126.25. See Brian Leiter, "Beyond the Hart/Dworkin Debate: The Methodology Problem inJurisprudence," American Journal of Jurisprudence 48 (2003) 17, 40-51. For other, moregeneral skeptical discussions of conceptual analysis, see, e.g., Gilbert Harman, "Doubts AboutConceptual Analysis," in Philosophy in Mind: The Place of Philosophy in the Study of Mind,ed. Michael Michaelis and John O'Leary-Hawthome (Dordrecht: Kluwer, 1994), 43-48; JerryFodor, "Water's Water Everywhere," London Review of Books, vol. 26, no. 20, Oct. 21, 2004.2005THE AMERICAN JOURNAL OF JURISPRUDENCEreality? With the concept of authority, one can respond that the interest of theinquiry (and the value of this way of dividing up the world) is that it involvesa particular, and important, normative question (when should we defer?), thatwould be worth investigating even if there were no conventional concept thatcorresponded to it. With law, the matter is different; one could reasonably askwhy we should care about the current conventional way of distinguishing"law" and "non-law." The criticism would continue: the conventional dis-tinction may have some interest for sociologists and linguists, but it may nothave significant philosophical interest. Further analysis is needed on thequestion of why we should build theories about this conceptual boundary.V. CONCLUSIONThose of us who think that the task of constructing theories of law isvaluable must give due attention to the project's methodological under-pinnings. Joseph Raz has articulated the likely structure-that we are investi-gating our concept of law-but there is still much work to be done in analyzingwhether there are multiple concepts, how one chooses among the concepts ifthere are, and when and why our concepts are worthy of philosophicalinvestigation.Vol. 50

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