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The Curious Case of Exclusionary Reasons

Published online by Cambridge University Press:  09 June 2015

Emran Mian
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Extract

This article explores Joseph Raz's concept of exclusionary reasons and attempts to explain how this concept fits into a general account of the authority of law. That account is elucidated and the concept of exclusionary force is considered in some detail. The article suggests that if ‘exclusion’ is read in a strong sense, it is extremely difficult to find examples of its existence. If though it is read in any weaker sense, it appears indistinguishable from the idea of ‘weight’. The article also considers the phenomenological, functional and ultimately, the existential reasons in favour of saying, as Raz does, that all legal authorities make their claims to authority in terms of exclusionary reasons. It is argued that this is both unlikely and unnecessary. The curious nature of exclusionary reasons is hence thoroughly unearthed.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 15 , Issue 1 , January 2002 , pp. 99 - 124
Copyright
Copyright © Cambridge University Press 2002

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References

1. The main works that will be relied upon in this essay are: The Authority of Law (Oxford: Clarendon Press, 1979) [hereinafter AL]; The Morality of Freedom (Oxford: Clarendon Press, 1986) [hereinafter MF]; “Facing Up: A Reply” (1989) 62 S. Cal. L. Rev. 1153 [hereinafter FU]; Practical Reason and Norms, rev. ed. with postscript, (Princeton, NJ: Princeton University Press, 1990) [hereinafter PRN]; Ethics in the Public Domain (Oxford: Clarendon Press, 1994). [hereinafter EPD].

2. For a similarly slanted critique of Raz’s political morality, see E. Mian, “Authority and Autonomy: bend them, shake them, any way you want them” (2001) 61 Politela 95.

3. I am taking these to be AL, ch. 3; MF, ch. 3; EPD, ch. 10.

4. EPD at 196-97.

5. MF at 371. Emphasis added.

6. AL at 51.

7. Quoted by Gerald Postema in his article, “Law’s Autonomy and Public Practical Reason” in R. George, ed., The Autonomy of Law (Oxford: Clarendon Press, 1996) at ch. 4.

8. MF at 58.

9. May, T., Autonomy, Authority and Moral Responsibility (Dordrecht: Kluwer, 1998)CrossRefGoogle Scholar at 130. Though Heidi Hurd is typically more careful, she does on occasion also read Raz as advocating expansive heteronomy, see Moral Combat (Cambridge: Cambridge University Press, 1999)Google Scholar.

10. FU at 1185.

11. AL, ch. 12; MF, ch. 4.

12. PRN at 193.

13. Term introduced by Leslie Green, “Law, Legitimacy and Consent” (1989) 62 S. Cal. L. Rev. 795 at 810; adopted by Raz, see FU at 1180.

14. MF at 57.

15. I am of course far from the first to venture into this quagmire. There is a substantial and well-known body of literature on these problems. See, for instance, Symposium: The Works of Joseph Raz (1989) 62 S. Cal. L. Rev. 731; Raz has however responded to much of the prior literature in FU and many of the comments here go beyond those responses. Also I do make points that I believe have not been made before.

16. MF at 47.

17. PRN at 194.

18. The suggestion here is very similar to the argument made by, for instance, Donald Regan, “Authority and Value” (1989) 62 S. Cal. L. Rev. 995. Rather than characterising laws as exclusionary reasons, Regan characterises them as ‘indicator-rules’.

19. MF at 57.

20. EPD at 333.

21. See for instance: G. Postema, “Co-ordination and Convention at the Foundations of Law” (1982) 11 J. Legal Studies 165; D. Regan, “Authority and Value”, supra note 18: H. Hurd. “Sovereignty in Silence” (1990) 99 Yale L. J. 945.

22. There may be other rejoinders to this approach too. However, I will consider only Raz’s rejoinders, for they connect intimately with his arguments for exclusionary reasons. I only wish to establish that there is no good reason for preferring Raz’s account of co-ordination to the salience account. It may be the case that both accounts are mistaken.

23. FU at 1188.

24. FU at 1189.

25. AL, ch. 12.

26. MF at 73-74.

27. These terms are taken from J. Cunliffe & A. Reeve, “Dialogic Authority” (1999) 19 Oxford J. Legal Studies 453. The following discussion has benefited greatly from their article.

28. MF at 74.

29. Though he uses it to illustrate a different point: MF at 159.

30. I am using the term ‘pressure’ here in preference to the term ‘obligation’. I suspect that there probably is an obligation too, but I fear that if I use that term, I will be expected to adumbrate the scope and details of the obligation and that would take me far/further from the central issues.

31. There might be perhaps the suspicion that in this discussion, I have mixed up the terms ‘conformity with reason’ and ‘better conformity with reason’. Raz, it might be argued, only needs to prove the latter whereas I have been arguing in terms of the former. I resist this objection. It is clearly true that in cases where the K-differential is higher than a certain level, it will be impossible for the individual to work out even if the authority enables better conformity with reason. A more extended rejoinder would also I suspect elaborate the thought that the two notions cannot be separated. I cannot work out if something enables me to better conform with reason unless I know what it would mean to conform with reason per se.

32. There may be one other reading which saves the normal justification thesis from incoherence. It may be said that where there is a K-differential, although I may not be in a position to work out exactly if the authority better enables conformity with the reasons that apply to me, it may nevertheless be the case that it does, or does not.

33. I bring up the Marxist specifically because Raz includes the Marxist in his descriptions of the pluralistic culture which authority is able to mediate within.

34. FU at 1168.

35. EPD, ch. 10.

36. Cf. F. Schauer, Playing by the Rules (Oxford: Clarendon Press, 1991). Also, “The Rule of Law and the Role of Rules” (1991) 14 Harv. J. L. & Public Pol’y 645.

37. A somewhat obvious point perhaps, but made most clearly by Philip Soper in “Legal Systems, Normative Systems, and the Paradoxes of Positivism” (1995) 8 Can. J. L. & Juris. 363.

38. EPD at 338.

39. The phrase comes form the work of Larry Alexander. See “The Gap” (1991) 14 Harv. J. L. & Pub. Pol’y 695; with E. Sherwin, “The Deceptive Nature of Rules” (1994) 142 U. Penn. L. Rev. 1191; “Can Law Survive the Asymmetry of Authority?” in L. Meyer, ed., Rules and Reasoning: Essays in Honour of Fred Schauer (Oxford: Hart Publishing, 1999).

40. See F. Schauer, Playing by the Rules, supra note 36.

41. See L. Alexander, “Can Law Survive the Asymmetry of Authority?”, supra note 39.

42. PRN at 194.

43. J. Raz, “Postema on Law’s Autonomy and Public Practical Reasons: A Critical Comment” (1998) 4 Legal Theory I at 12.

44. Ibid, at 10.

45. Ibid, at 13-14.

46. Cf. Kramer, M., In Defense of Legal Positivism (Oxford: Oxford University Press, 1999)Google Scholar at ch. 3.

47. EPD at 20l.