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RAZ ON THE INTERNAL POINT OF VIEW

Published online by Cambridge University Press:  30 September 2011

Mark McBride
Mark McBride*
Affiliation:
Faculty of Law, National University of Singaporemarkmcbride1978@gmail.com
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Abstract

This article addresses the question of whether judges can take the internal point of view toward—accept—their legal system's rule of recognition for purely prudential reasons. It takes a fresh look at an underappreciated conceptual argument of Joseph Raz's that answers: no. In a nutshell, Raz argues that purely prudential reasons are reasons of the wrong kind for judges to accept their legal system's rule of recognition. And should Raz's argument succeed, an important necessary connection between law and morality would be established.

Information

Type
Research Article
Information
Legal Theory , Volume 17 , Issue 3 , September 2011 , pp. 227 - 236
Copyright
Copyright © Cambridge University Press 2011

I.

Here is a question at the heart of (many contemporary debates in) legal philosophy: Can judges take the internal point of view toward—accept—their legal system's rule of recognition for purely prudential reasons?Footnote 1 I want to take a fresh look at an underappreciated conceptual argument of Joseph Raz's that answers: no.Footnote 2 In a nutshell, Raz argues purely prudential reasons are reasons of the wrong kind for judges to accept their legal system's rule of recognition. And should Raz's argument succeed, an important necessary connection between law and morality would be established.

A.

The plan: First, I set out and reconstruct Raz's argument. Second, I grapple with Raz's argument: the aim is not to refute or rebut Raz but rather to draw attention to certain principles on which his argument implicitly rests. The hope is that such grappling will prove illuminating and reawaken interest in a rather neglected Razian argument: by foregrounding its enthymematic principles, we shall be better placed to determine the argument's strengths and weaknesses. Indeed, exploration of its enthymematic principles—principles concerning the closure, and what I call reverse closure, of agential motivation for accepting rules—will, I hope, prove to be of independent interest.

II. RAZ'S ARGUMENT

A.

Here is Raz's argument:

[R]ules telling other people what they ought to do can only be justified by their self-interest or by moral considerations. My self-interest cannot explain why they ought to do one thing or another except if one assumes that they have a moral duty to protect my interest, or that it is in their interest to do so. While a person's self-interest can justify saying that he ought to act in a certain way, it cannot justify a duty to act in any way except if one assumes that he has a moral reason to protect this interest of his. Therefore, it seems to follow that I cannot accept rules imposing duties on other people except, if I am sincere, for moral reasons. Judges who accept the rule of recognition accept a rule which requires them to accept other rules imposing obligations on other people. They, therefore, accept a rule that can only be accepted in good faith for moral reasons. They, therefore, either accept it for moral reasons or at least pretend to do so.Footnote 3

B.

I propose reconstructing Raz's argument as follows—where to accept a rule is to (be disposed to) regard it as a binding standard of public behaviorFootnote 4; and supposing judicial good faith (i.e., sincerity):Footnote 5

  1. (1) Judges accept their legal system's rule of recognition.

  2. (2) If judges accept a rule of recognition, those judges accept rules imposing obligations on other people.

  3. (3) If one accepts rules imposing obligations on other people, some or all of one's reasons for doing so are moral.

  4. (4) Therefore [from (1), (2), and (3)]: Judges accept rules imposing obligations on other people, and some or all of their reasons for doing so are moral.

  5. (5) Therefore: Judges accept the rule of recognition, and some or all of their reasons for doing so are moral.

GRAPPLING WITH RAZ'S ARGUMENT

A.

Suppose premise (1) is a conceptual truth.Footnote 6 The weakest, interesting, conceptual principle licensing premise (2) appears to be:

Recognition Acceptance Closure: If judges accept a rule of recognition and that rule of recognition validates rules imposing obligations on other people, then those judges accept all (or most of) those rules imposing obligations on other people.Footnote 7

As an example, suppose the rule of recognition is: Whatever the Queen in Parliament enacts is law. The Queen in Parliament enacts a 60-mile-per-hour (mph) maximum speed limit on dual carriageways. By Recognition Acceptance Closure, if judges accept this rule of recognition, they (likely) accept the 60-mph speed-limit rule, and so on. And we might hope the above principle is subsumable under a more general principle. Perhaps the following (where ‘Φ’ and ‘Ψ’ range over rules):

Acceptance Closure: If one accepts Φ and Φ validates Ψ, then for every Ψ one accepts Ψ (or for most instantiations of Ψ one accepts Ψ).

As an example, suppose I accept and follow the rule: Whatever the guru Footnote 8 decrees is authoritative. On a broad construal, this rule validates the guru's edicts (rules). The guru tells me I ought to brush my teeth. By Acceptance Closure, I (likely) accept the tooth-brushing edict. Acceptance Closure licenses Recognition Acceptance Closure—the latter is (loosely speaking) an instance of the formerFootnote 9—which in turn, assuming that the rule of recognition in question validates rules imposing obligations on other people, licenses (2). And premise (3) is a putative conceptual truth (which derives from Raz's view on “the identity of meaning of ‘obligation’ in legal and moral contexts”).Footnote 10

B.

The step from [(1), (2), and (3)] to (4) is valid. I propose, then, arguendo, granting Raz (4).Footnote 11 What general and informative principle will take Raz to his conclusion, (5)? Consider, most generally:

Reverse Closure: If one accepts Ψ for reason-type R, and one accepts Φ, and Φ validates Ψ, then one accepts Φ for reason-type R.Footnote 12

But this principle forbids (does not permit) what I shall dub motivational additions: accepting Φ for reason-type R1 and accepting a rule it validates, Ψ, for reason-types R1 and R2. (Call the former rule a validating rule and the latter rule a validated rule.) As an example, again involving the guru, suppose, again, I accept and follow the rule: Whatever the guru decrees is authoritative. I accept this rule for either prudential or moral reasons (but not both). Again, on a broad construal, this rule validates the guru's edicts (rules). The guru tells me I ought to set up and take part in a sports camp, “The School of Hard-Knocks”, aimed at taking recidivists off the streets. I set up and take part in the camp for prudential and moral—mixed—reasons. And it would seem motivational additions are a general phenomenon. Validation (typically) broadens the horizons and (typically) takes one from an extensionally smaller set of rules to an extensionally larger set of rules.Footnote 13 Moreover, it need not be that a validating rule is directed toward the same set of persons as a rule it validates. Motivational additions are therefore to be expected. There is cause, then, to doubt Reverse Closure as a Razian route from (4) to (5) and to search for a principle permitting motivational additions.Footnote 14

C.

The foregoing suggests (though hardly conclusively establishes), somewhat metaphorically:

Penetration Principle: One's reasons for accepting a validating rule penetrate through the validation to become reasons for accepting the validated rule.Footnote 15

To see Penetration Principle in action we need only, its supporters might suggest, revisit the foregoing three examples, that is, the speed limit, tooth-brushing, and sports camp cases. I do not seek to—indeed, I doubt one can—prove Penetration Principle. Rather, let me highlight two likely putative counterexamples to Penetration Principle, involving judicial acceptance of a validating rule for purely prudential and purely moral reasons, by turn. Somewhat metaphorically, each putatively involves a case of a reason failing to penetrate through the validation (albeit being replaced by another reason-type).Footnote 16 Following each counterexample, I gesture at a likely reply that could be made by a supporter of Penetration Principle. Although in so doing I speak in the voice of such a supporter, I should not be taken to endorse either reply.

First, suppose that (pace Raz) judges accept a rule of recognition for purely prudential reasons of, say, self-preservation; such judges may well, according to this objector, accept a validated rule for purely moral reasons. But this objection, one might think, misfires: prudential reasons of self-preservation will penetrate through the validation to become reasons for accepting the validated rules. Accepting the validated rules is a (key) means by which such judges can effect their end of self-preservation: and the means inherit the end's reasons. This objector's case is, then, in fact a motivational addition, with judges accepting the validated rule for moral and prudential—mixed—reasons.Footnote 17

Second, suppose judges accept a rule of recognition for purely moral reasons; such judges may well, according to this objector, accept a validated rule for purely prudential reasons of, again, say, self-preservation.Footnote 18 More concretely, our objector may ask us—for dialectical reasons—to imagine these facts obtain with respect to our opening, purely pedigree-based, rule of recognition, namely: Whatever the Queen in Parliament enacts is law. And let us suppose that the Queen in Parliament enacts a law that the judges in question take to be thoroughly misguided. But again, this objection, one might think, misfires: moral reasons will penetrate through the validation to become reasons for accepting the validated rule. If judges do indeed accept this purely pedigree-based rule of recognition for purely moral reasons, it seems inevitable that such judges will accept any rule validated by this rule of recognition for (partly) moral reasons. To accept the rule that whatever the Queen in Parliament enacts is law for purely moral reasons is to accept whatever the Queen in Parliament indeed enacts for (partly) moral reasons. Think of it this way: By accepting this rule of recognition for these reasons, such judges are (with suitable provisos) effectively allowing the Queen in Parliament to make the call on the substantive content of the law. Their considered reflection down the line on the misguidedness of any particular law will not prevent moral reasons penetrating through the validation to the validated rule. This objector's case is, then, in fact a motivational addition, with judges accepting the validated rule for prudential and moral—mixed—reasons.Footnote 19

Overall, one might think, each putative counterexample to Penetration Principle overlooks, or underestimates, the conceptual connection effected by the process of validation between one's reasons for accepting a validating rule and one's reasons for accepting a validated rule.

The foregoing sketch of an inchoate debate over Penetration Principle can hardly be considered determinative—in particular, its supporters cannot be taken to have established it. And in the event of successful counterexamples to Penetration Principle, we may wish to explore suitably restricted versions thereof. Still, I propose, arguendo, accepting Penetration Principle as a concession to Raz. Penetration Principle serves, somewhat metaphorically, to anchor reasons for acceptance in the direction of the validation Footnote 20 and thereby to rule out certain likely counterexamples to any move from (4) to (5). In sum, then, and in light of Penetration Principle, any plausible fully general principle licensing a move from (4) to (5), thus, will permit motivational additions and will forbid (or operate in tandem with an auxiliary principle to forbid) what I shall dub motivational deductions: accepting Φ for reason-types R1 and R2 and accepting a rule it validates, Ψ, for reason-type R1.

D.

I want to explore two principles, though, reachable by restricting the scope of Reverse Closure. When such a scope-restriction is effected, a sharp (exhaustive and exclusive) dichotomy between what phenomenaFootnote 21 a principle (or rule) permits and what it forbids breaks down. I propose, when a scope-restriction has been effected, replacing this dichotomy with the following (exhaustive but nonexclusive) trichotomy: scope-permittedness, outside-scope-permittedness, and scope-forbiddenness.

Say a phenomenon is scope-permitted by a principle just in caseFootnote 22 the phenomenon is not forbidden by the principle within its scope. And say a phenomenon is outside-scope-permitted by a principle just in case the phenomenon is not forbidden by the principle outside its scope.Footnote 23 Finally, say a phenomenon is scope-forbidden by a principle just in case the phenomenon is not permitted by the principle within its scope.Footnote 24

So, for example, consider the rules of chess and in particular the rule for moving the king, that is, the king can move exactly one square horizontally, vertically, or diagonally. The rule for moving the king scope-permits, for example, moving the king one square horizontally. And the rule for moving the king outside-scope-permits, for example, moving the queen in an “L” shape (notwithstanding that the rule for moving the queen scope-forbids this move) and also moving the queen two vacant squares diagonally (a move scope-permitted by the rule for moving the queen). Put vernacularly, the rule for moving the king does not speak to these phenomena—falling, as they do, outside its scope. Finally, the rule for moving the king scope-forbids, for example, moving the king two squares horizontally.

E.

With this said, I suggest, on the back of a certain reading of Raz's argument, the following principle, licensing a move from (4) to (5):

Single-Reason Reverse Closure: If one accepts Ψ for single reason-type R, and one accepts Φ, and Φ validates Ψ, then one accepts Φ for single reason-type R.

This principle, trivially, outside-scope-permits (though does not scope-permit)Footnote 25 motivational additions and scope-forbids motivational deductions. And this last principle also scope-forbids what I shall dub motivational shifts: accepting Φ for single reason-type R1 and accepting a rule it validates, Ψ, for single reason-type R2. But on our assumption of Penetration Principle, there is no reason to believe in such shifts.Footnote 26 Single-Reason Reverse Closure, though an improvement on Reverse Closure in these respects,Footnote 27 is unduly restrictive: it has no application to cases—left open by (4) and (5)—where judges accept the obligation-imposing rules and/or the rule of recognition for moral and prudential—mixed—reasons. And it is highly plausible that, in the hurly-burly of legal practice, cases involving mixed motivations will be commonplace. Single-Reason Reverse Closure thus will not do.

F.

So I restricted the scope of Reverse Closure by switching to Single-Reason Reverse Closure—a principle explicitly restricted to acceptance of rules for single reason-types. But there is an alternative, likely method of restriction of Reverse Closure open to Raz:

Obligation-Imposing Reverse Closure: If one accepts obligation-imposing Ψ for reason-type R, and one accepts Φ, and Φ validates Ψ, then one accepts Φ for reason-type R.

So this foregoes the generality of Reverse Closure, not—as does Single-Reason Reverse Closure—by restricting application to the number of reason-types for which one accepts a rule but rather by restricting application to a particular type of validated rule. This last principle scope-forbids both motivational additions and shifts but scope-permits (and, trivially, outside-scope-permits) motivational deductions. How problematic is this result with respect to motivational additions and deductions (the scope-forbiddenness of motivational shifts is, on our assumptions, straightforwardly welcome)? Taking motivational deductions first, while Obligation-Imposing Reverse Closure scope-permits motivational deductions, perhaps it simply needs to operate in tandem with an auxiliary principle forbidding motivational deductions—namely, Penetration Principle.Footnote 28 Finally, what about motivational additions? The key question here is: Granting that motivational additions are a general phenomenon, can they occur within the scope of obligation-imposing validated rules? In Raz's case, for example, judges can—we've established—accept the obligation-imposing rules for moral and prudential—mixed—reasons. But can they, consistently with that, accept the rule of recognition for a single reason-type? I see no reason why not (regardless of whether the rule of recognition is taken to be an obligation-imposing rule). Although in rejecting Single-Reason Reverse Closure, we had cause to think that cases of mixed motivations would be commonplace in the hurly-burly of legal practice, this is not to say that judicial acceptance of the rule of recognition for a single reason-type is ruled out. Obligation-Imposing Reverse Closure thus will not do either.

G.

It turns out, then, that neither of our two restricted reverse-closure principles will straightforwardly do the job in licensing a move from (4) to (5). They suffer from one or more of the following defects: resulting in the scope-forbiddenness of an intuitive phenomenon (motivational additions), being unduly restrictive, or, more generally, appearing ad hoc. Given this, and given that our unrestricted reverse-closure principle, taken alone, suffered from the twin defects of forbidding an intuitive phenomenon (motivational additions) and permitting an unintuitive phenomenon (motivational deductions), in the absence of alternative reverse closure principles, Raz's argument seems in difficulty.

Footnotes

1. For present purposes, I (like Raz himself) prescind from committing to any particular substantive analysis of what it is to accept a rule for a reason(-type) and rely on an intuitive working grasp of this notion. [Cf. Raz's analysis of acting for a reason: “[A] person Φ-s for the reason that p if, and only if, he Φ-s because he believes that p is a reason for him to Φ.” Raz, J., Practical Reason and Norms (2nd ed., 1999).] Indeed, cases involving what I dub mixed reasons (in Section III.B infra) may raise novel difficulties for many such analyses.

2. Raz, J., Hart on Moral Rights and Legal Duties, 4 Oxford J. Legal Stud. 123–131 (1984). Though for a pithy recent restatement of Raz's argument which prompted my writing this paper, see Shapiro, S., Legality (2011), at 108–109 n.97. Moreover, this sort of argument was considered by Hart, H., Essays on Bentham (1982), in the book to which Raz's essay was a response, and also later in Kramer, M., In Defense of Legal Positivism (1999), ch. 4.

3. Raz, supra Footnote note 2, at 130. Here and in what follows, moral reasons are contrasted with self-interested (or prudential) reasons. In this paper I commit to moral and prudential forming exclusive and exhaustive reason-types. Raz himself does not take the contrast between moral and self-interested (or prudential) reasons to be able to withstand much philosophical pressure (though we can assume it withstands the pressures of this argument). Note also that it is not the case that the notion of a rule of recognition—much less of an obligation-imposing rule of recognition—features prominently in positive development of Raz's own position; it principally features, rather, in his discussions of the work of other philosophers who employ the notion. This (in part) explains the shape of Raz's argument (see n. 12 infra). That is, were Raz to admit an obligation-imposing rule of recognition, there would seem to be a much more direct route to his establishing his desired conclusion than via (my reconstruction of) his argument.

4. See Hart, H., The Concept of Law (2d ed., Bulloch, P. & Raz, J. eds., 1994), at 55–57, 255.

5. Indeed, throughout this paper I assume agential good faith—an assumption Raz is willing to explore making in his argument. Such an assumption closes any potential gap between reasons presupposed by agents' acceptance of rules [Raz's principal focus—cf. Raz, J., The Morality of Obedience, 83 Mich. L. Rev. 732–749 (1985)] and the actual motivation of agents for accepting rules (my principal focus) and thereby enables consideration of various interesting motivational principles and phenomena in the course of engagement with Raz.

6. See Hart, supra Footnote note 4, at 115.

7. Shapiro, S., On Hart's Way Out, in Hart's Postscript: Essays on the Postscript to THE CONCEPT OF LAW 149–191 (Coleman, J. ed., 2001), at 178, suggests a similar principle: “If a judge is motivated to act on a rule about a rule, then it would seem that the judge would be motivated to act on the underlying rule itself.” I am interested in exploring the prospects for Recognition Acceptance Closure (and the ensuing Acceptance Closure) as a more strict closure principle (i.e., without its consequent's parenthetical restriction). A stricter version is given enhanced plausibility by adopting the dispositional reading of acceptance embraced in the Postscript to Hart, supra Footnote note 4, at 255 (for more on dispositions, see Fara, M., Dispositions, in The Stanford Encyclopedia of Philosophy (Zalta, E. ed., 2006), available at http://plato.stanford.edu/entries/dispositions/). I cannot, however, undertake such an exploration in this paper. Finally, I touch extensively on a further sense in which Recognition Acceptance Closure is not strict at Section III.F. infra (cf. n. 9 infra).

8. He is, I am supposing, the guru: his edicts purport to constitute binding standards of public behavior (though he is not a lawmaker).

9. This is the case provided we assume that the set of rules imposing obligations on other people that a rule of recognition validates are, in respects bearing on the correctness of Acceptance Closure, representative of the entire set of rules that a rule of recognition validates. So let us make this assumption pro tem (cf. Section III.F. infra).

10. Hart, H., Essays on Bentham (1982), at 159. I propose we do not—though one might—quibble with anything so far.

11. By itself, (4) appears to establish a necessary connection between law and morality. (This is why Kramer takes issue with premise [3] [supra Footnote note 2, at ch. 4]. In the absence of [3], Raz of course cannot reach [4].) However, my chief interest in this paper (following Raz's chief interest in constructing his argument) is on whether (5) can be established.

12. So this reverse closure principle (and ensuing ones) is, in salient respects, like the closure principles I put on display in Section III.A in reverse: here one starts with a fact about a subject's relation to a validated rule and attempts to transition backward to facts about a subject's relation to a validating rule. Thus the general shape of Raz's argument: start with an uncontentious fact about judges' relation to a rule of recognition; transition, by a closure principle and a putative conceptual truth, to a substantive claim about judges' relation to a set of validated rules; and finally transition, by a reverse closure principle, back to a substantive claim about judges' relation to the validating rule of recognition.

13. This is one of a number of suggestive parallels between validation and entailment (cf. Section III.A's closure principles with epistemic closure principles).

14. This prompts a brief reflection on a point of method: Here, the expectedness of the phenomenon of motivational additions led to revision of a putative bridging principle from (4) to (5). And, as further motivational phenomena are introduced, this point of method recurs: To be plausible, putative bridging principles from (4) to (5) (either alone or in tandem with an auxiliary principle) must, without ad hoc-ery, correctly map—less strongly: respect—the neighboring motivational terrain (cf. n. 26 infra). It should be noted in this regard that one might consider it a greater defect in a principle to—as here—forbid an intuitive motivational phenomenon (failure to respect), than it is to—as happens later—permit an unintuitive one (failure to map).

15. Several quick points about Penetration Principle. First, it is a putative conceptual truth: its scope is all of one's reasons for accepting a validating rule (although, taking into account the expectedness of motivational additions, additional reasons may be in place for accepting the validated rule) and every validated rule. Second, it is intended to be both-ways independent of Section III.A's Acceptance Closure (although I assume acceptance of every validated rule in discussion of the cases in Section III.C). Third, it is assessable on any plausible way of individuating reasons, although for present purposes I continue with n. 3's taxonomy. Finally, the penetration terminology is lifted from the discussion of penetrating operators in Dretske, F., Epistemic Operators, 67 J. Phil. 1007–1023 (1970).

16. These two cases thus involve putative instances of what I dub motivational shifts (in Section III.E infra).

17. One might instead (on Razian lines) question the very setup of this first case in a more fundamental way: How plausible is it that judges accept a validated rule for purely moral reasons without those reasons featuring at all in their motivation for accepting the very rule that validates it (cf. Section III.E infra)? But we do not need to question the case's setup so fundamentally in order to reply to the counterexample.

18. If the validated rule in question imposes obligations on other people, the setup of this second case conflicts with our assumption of judicial good faith combined with Raz's premise (3). Given this (combined with what Raz says about rules imposing obligations on oneself), our objector may be well advised dialectically to run the case with a non-obligation-imposing validated rule.

19. Again (cf. n. 17 supra), one might instead question the very setup of this second case in a more fundamental way: How plausible is it that judges accept a validated rule for purely prudential reasons of self-preservation without those reasons featuring at all in their motivation for accepting the very rule that validates it (again, cf. Section III.E infra)? But again, we do not need to question the case's setup so fundamentally in order to reply to the counterexample.

20. Crucially, Penetration Principle does not serve such an anchoring role against the direction of the validation.

21. Strictly, here, phenomena pertaining to reasons for accepting a rule in the realm of validation.

22. I follow a standard philosophical practice of using “just in case” as interchangeable with “if and only if.”

23. Thus, for any scope-restricted principle, all phenomena will be, trivially, outside-scope-permitted. And this means that when operating with scope-restricted principles, scope-permittedness (and indeed, scope-forbiddenness) entails outside-scope-permittedness; but the converse entailment does not hold.

24. Thus, for any scope-restricted principle, all phenomena that fall within the scope of the relevant principle will be either scope-permitted or scope-forbidden.

25. That is, it scope-forbids.

26. Now that I have all relevant phenomena dubbed and on the table, a rough-and-ready checklist against which we can assess putative principles can be drawn thus: motivational additions are to be expected, while motivational deductions and shifts are not to be expected. (Cases in which just the same reasons—whether single or mixed—feature in one's acceptance of a validating and a validated rule are—on account of Penetration Principle—to be expected and may be called motivational symmetries. Motivational symmetries per se are, though, comparatively uninteresting.)

27. I can now (cf. n. 26 supra) give a full diagnosis of (the unacceptable) Reverse Closure: it, defectively, forbids motivational additions and permits motivational deductions while it, nondefectively, forbids motivational shifts.

28. Why not explore pairing the unrestricted Reverse Closure with Penetration Principle to facilitate, in a like manner, the forbiddenness of motivational deductions? One could do this, but Reverse Closure would still, defectively, forbid motivational additions (cf. n. 27 supra).

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