A Pragmatic Reconstruction of Law’s Claim to Authority

Abstract

AbstractRaz holds thatnecessarilyall legal authorities, evende factoauthorities, make a claim to legitimate authority. He does not say that legitimacy is a necessary property of law. This view, which I call theclaim view, constitutes my focal point in this paper. Many commentators have criticized this view. I discuss and dismiss three critiques of the claim view: theverification critique(the claim view is not empirically confirmed), thelegalistic critique(law claims legal authority, not moral authority), and thesemantic critique(legal obligations are semantically distinct from moral obligations).I submit that Raz equates the meaning of legal duties with that of moral duties and yet denies that legal statements entail moral propositions. In other words, I distinguish thesemantic identity thesisfrom thesemantic entailment thesis. Instead of a semantic interpretation of the claim view, I defend a presuppositional ascription of a general claim to moral authority to authoritative duty‐imposing and normatively committed uses of legal language by official spokesmen. I show that law’s claim to authority does not prove the truth of the sources thesis, because conceptual confusion or insincerity can affect the epistemic reliability of the propositions embodied in the claim, and because blatant immorality can altogether cancel law’s pragmatically presupposed claim to moral authority. I also argue that the claim view can only warrant two qualified versions of exclusive legal positivism, one of which is almost tautological, the other self‐contradictory. Finally, I suggest that exclusive legal positivism cannot be defended on conceptual grounds.