(These thoughts were prompted by an extremely acute question in jurisprudence by Lisa Christensen Gee, a 2L here at Chicago.)
I was teaching for the umpteenth time Joseph Raz's important 1985 paper "Authority, Law, and Morality" (ALM) from The Monist. Dialectically, it comes in as follows in the basic jurisprudence course I teach. (I will give a rather condensed summary, since the issues will be familiar to most readers.) Dworkin claims that there are some "principles" (in Dworkin's technical and idiosyncratic sense) that are legally binding not in virtue of their pedigree, but in virtue of their content. Hart agrees, but claims that this is just a contingent fact about the rule of recognition in certain legal systems, i.e., systems like the Anglo-American in which officials do sometimes treat moral considerations as criteria of legal validity--hence Hart's "Soft Positivism." Raz thinks this is a mistake, since it is part of the concept of law that all law claims authority, and that there are two non-normative prerequisites of claiming authority that are incompatible with the Soft Positivist response: first, an authoritative directive must express someone's view about what ought to be done (what I'll call the "Agency" prerequisite); and second, the authoritative directive must be intelligible to the subject without recourse to the very dependent reasons in which the directive was supposed to be based.
In ALM, Raz has a somewhat idiosyncratic characterization of Soft Positivism in the form of the "Incorporation Thesis," and then criticizes Dworkin's view under the heading of the Coherence Thesis. Since Hart, of course, thinks that Dworkin's view is just a case of particular jurisprudence about the Anglo-American legal systems, one consistent with Hart's own Soft Positivism, I usually have the students focus on Raz's authority argument against what he calls the Coherence Thesis. What I'm particularly concerned with here is the Agency prerequisite for claiming authority. Why is the idea that a rule of recognition (hereafter RR) might incorporate moral criteria of legal validity incompatible with the Agency prerequisite?
Ms. Gee pointed out that a RR incorporating moral criteria of legal validity does indeed look like someone's view about what ought to be done (i.e., about how questions of legal validity ought to be decided): namely, the view of the officials whose practice constitutes the RR (since the RR is just a social rule). It's true enough there would still be a problem with respect to the second non-normative prerequisite, but the Agency prerequisite appears to be satisfied. If officials apply moral criteria of legal validity, and think they ought to do so, then the moral criteria of legal validity in the RR reflect their view about how questions of validity ought to be decided.
That move isn't, of course, available to Dworkin's Coherence Thesis (as Raz makes clear), since of course Dworkin denies that an RR is even a necessary feature for the existence of a legal system. According to Raz, Dworkin's view violates the Agency prerequisite because "according to him there can be laws which do not express anyone's judgment on what their subjects ought to do, nor are they presented as expressing such a judgment." But notice that this objection holds against Hart's Soft Positivism: for on the Soft Positivist view, some norms are legally valid because they satisfy a moral criterion, and even though they express no one's view about what ought to be done. So Hart's Soft Positivism is incompatible with the Ageny prerequisite at the level of the norms that are legally valid, rather than at the level of the RR's claim of authority vis-a-vis officials.
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