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Making Inclusive Positivism Compatible with Razian Authority
Published online by Cambridge University Press: 09 June 2015
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Inclusive Legal Positivism (ILP) is the view that morality may, but need not be part of the criteria for valid law. Joseph Raz has argued against this position by showing that law cannot be authoritative on the ILP view. In this paper I argue that ILP and Razian authority can in fact be made compatible by developing Jules Coleman's distinction between authority and legality. While the rule of recognition is a necessary condition for legality (in order to validate law), it need not be a condition for authority (for citizens to identify law). By elaborating on this distinction and further developing the argument, I conclude that one can be an inclusive positivist about law and a Razianabout authority.
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References
1. Although Raz’s argument is about the practical authority of law, as distinguished from theoretical authority, for the purposes of this paper I will simply use ‘authority’ to refer to what Raz specifies as practical authority.
2. ,Waluchow, Wil J., Inclusive Legal Positivism (Oxford: Oxford University Press, 1994)Google Scholar; Waluchow, Wil J., “Authority and the Practical Difference Thesis: A Defense of Inclusive Legal Positivism” (2000) 6:1 Legal Theory 45Google Scholar.
3. Coleman, Jules L., “Authority and Reason” in R.P. George, ed., The Autonomy of Law: Essays on Legal Positivism (New York: Oxford University Press, 1996)Google Scholar; Coleman, Jules L., “Incorporationism, Conventionality, and the Practical Difference Thesis” (1998) 4:4 Legal Theory 381Google Scholar.
4. Raz, Joseph “Authority, Law and Morality,” (1985) 68:3 The Monist 295 at 299Google Scholar.
5. Ibid.
6. Ibid.
7. Ibid, at 304.
8. Coleman, “Authority and Reason” supra note 3 at 307.
9. Ibid. at 308.
10. Coleman, “Incorporationism, Conventionality, and the Practical Difference Thesis” supra note 3 at 419.
11. Coleman, “Authority and Reason” supra note 3 at 293.
12. Waluchow, Wil J., “The Many Faces of Legal Positivism” (1998) 48:3 U.T.L.J. 387 at 428Google Scholar.
13. Joseph Raz, “Authority and Justification” (1985) 14:1 Phil. & Publ. Aff. 3 at 14.
14. Supra note 4 at 299.
15. Ibid. at 300.
16. Supra note 13 at 13–14.
17. In these limited cases of deliberation, citizens would need to referto the rule of recognition to access the validation criteria.
18. Waluchow, supra note 2 at 78, makes the same argument in response to Shapiro’s claim that moral principles on an ILP view of law cannot provide motivational guidance. I have borrowed the minimum wage example from his argument here.