Pre-emption Thesis Research Articles

El desafío de la tesis de la autonomía: examinando la tesis de la exclusividad en el razonamiento judicial y el precedente

This article reflects on one of the challenges Gerald Postema’s account of the autonomy thesis poses to Raz’s pre-emption thesis in judicial practice and precedent. Certain flaws in the pre-emption thesis, as applied to courts, come to light upon analyzing the autonomy challenge, whereas some aspects of the former are better understood from the perspective of the latter. This work shows that, although these two theses seem to clash, the autonomy challenge leads instead to an alternative approach to the pre-emption thesis that allows exploring some disregarded relationships between judicial practical reasoning and precedent. Drawing from this Raz-Postema debate, I argue for an alternative reading of the autonomy challenge by introducing the hermeneutic strategy of courts (HeSCo) as a tool to analyze the role of officials as addressees of exclusionary legal directives and its explanatory force. The HeSCo ultimately unravels the paradox by holding the pre-emption thesis as central to the proper understanding of judicial practice and precedent.

Can Raz’s Pre-Emption Thesis Survive under a Dworkinian Theory of Law and Adjudication?

¿Puede la tesis del reemplazo de Raz sobrevivir en el contexto de una teoría dworkiniana del derecho y de la adjudicación? Judging Positivism, de Margaret Martin, fornece una de las mejores reconstrucciones y una de las más interesantes críticas ya planteadas contra la influyente filosofía del derecho de Joseph Raz. En uno de los pasos centrales de su argumento, Martin desafía una sumisión central de Raz, que es el intento de combinar la tesis del reemplazo con la tesis de la justificación normal. Mientras la primera exige que ciudadanos y oficiales excluyan de la deliberación cualesquiera razones de primer orden para la acción, la ultima invita consideraciones sobre legitimidad que no se puede examinar con independencia de las razones de primer orden que la tesis del remplazo pretende excluir. En este comentario crítico, yo acepto la crítica de Martin según la cual esas dos tesis no pueden ser aceptadas como argumentos conceptuales. Sin embargo, sugiero que aún existe un espacio para armonizarlas si se las acepta por razones normativas. Si hay un buen argumento para tratar razones jurídicas como un nivel intermedio de razones para la acción, entonces puede haber buenos argumentos circunstanciales para tratar razones institucionales como remplazantes en el sentido que Raz defiende en su teoría del derecho.

Review of Noam Gur, Legal Directives and Practical Reasons

In his book Legal Directives and Practical Reasons, Noam Gur considers ways that practical reasons provided by legal directives may interact with moral and other types of practical reasons. He considers, but ultimately rejects, two important models of such interaction, namely, (i) Joseph Raz’s pre-emption thesis, according to which an authoritative directive provides the agent with a (first-order) reason to perform the relevant action and a (second-order, exclusionary) reason to disregard certain, perhaps all, non-legal reasons against performing the action, and its main competitor, (ii) the weighing model, which has it that all relevant reasons, non-legal as well as legal, carry normative weight, and that the agent ought to act in accordance with the balance of those reasons. Instead, Gur defends what he calls the dispositional model, according to which the existence of a reasonably just legal system that also comports with the ideal of the rule of law constitutes a reason for those who are subject to its authority to adopt (what Gur calls) a law-abiding attitude, which includes an overridable disposition to comply with legal directives. In defending the dispositional model, Gur takes himself to be tracing a middle course between the above-mentioned models, arguing that an agent who acts in accordance with the dispositional model will comply with legal directives less often than an agent who follows the pre-emption thesis, but more often than an agent who follows the weighing model. He then argues that the dispositional model is preferable to the other two models, on the grounds that it strikes a better balance than they do between considerations that favor treating legal directives as binding (the pre-emption thesis) and considerations that favor acting in accordance with a case-specific assessment of legal directives in the situation in which they apply (the weighing model). I give the book my highest recommendation. The topic of the book is both interesting and important, the discussion of the various questions is at all times subtle and illuminating, and in addition, Gur is a very good stylist. Nevertheless, I do offer a few critical comments. Among other things, I point to the absence of a systematic discussion of the precise question that Gur aims to answer in the book and identify some difficulties in the main arguments adduced by Gur against the pre-emption thesis and the weighing model and in favor of the dispositional model. In addition, I suggest that that whereas the pre-emption thesis and the weighing model aim to lay down a criterion of correctness, the dispositional model is best understood as aiming instead to provide the agent with a method for deliberation.

Epistemische Deferenz

What is the correct epistemic stance that laypeople should take vis-a-vis epistemic authorities? The author provides an answer to this question based on a critical examination of Linda Zagzebski’s Preemption Thesis, according to which the fact that an authority has a belief p is a reason for a layperson to believe p that replaces her other reasons relevant to believing p and is not simply added to them. In contrast, the author argues that epistemic deference requires a layperson to perform a number of epistemic tasks and involves an active and critical stance that conflicts with the Preemption Thesis.

EPISTEMIC AUTHORITY, PREEMPTIVE REASONS, AND UNDERSTANDING

ABSTRACTOne of the key tenets of Linda Zagzebski's bookEpistemic Authority: A Theory of Trust, Authority, and Autonomy in Belief(2012) is the “Preemption Thesis for epistemic authority.” It says that, when an agent realizes that an epistemic authority believes that p, the epistemically rational response for her is to adopt the authority's belief and to replace all of her previous reasons relevant to whether p by the reason that the authority believes that p. I argue that such a “Hobbesian approach” to epistemic authority yields problematic results. This becomes especially virulent when we apply Preemption to cases in which the agent and the authority share their belief (same-belief cases), or in which both have either a positive or a negative graded doxastic attitude toward a given proposition. As an alternative I propose what I call a “Socratic approach,” according to which epistemic authorities will not only motivate us to adopt their beliefs, but also provide us with higher-order reasons for re-assigning our own considerations their proper place in the web of reasons for and against the view in question, thereby fostering our overall understanding of the topic.

Legal Directives in the Realm of Practical Reason: A Challenge to the Pre-emption Thesis

Legal Directives in the Realm of Practical Reason: A Challenge to the Pre-emption Thesis Get access Noam Gur Noam Gur Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Jurisprudence, Volume 52, Issue 1, 2007, Pages 159–228, https://doi.org/10.1093/ajj/52.1.159 Published: 01 June 2007

Just 'Cause You're Smarter than Me Doesn't Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis

Joseph Raz's famous theory of authority is grounded in three claims about the nature and justification of authority. According to the Preemption Thesis, authoritative directives purport to replace the subject's judgments about what she should do. According to the Dependence Thesis, authoritative directives should be based on reasons that actually apply to the subjects of the directive. According to the Normal Justification Thesis (NJT), authority is justified to the extent that subjects are more likely to comply with right reason by following the authority's directives than by following their own judgments about what right reason requires. 1 In this article, I consider a number of ways in which NJT might be construed as a justification for authority. First, I evaluate NJT construed as a principle that would provide a practical justification for an individual to accept or recognize a particular person or persons as a preemptive authority. Second, I evaluate NJT construed as a principle that describes the conditions under which a state or legal system is morally legitimate. I argue that NJT is true under none of these interpretations. 2

Just 'Cause You're Smarter than Me Doesn't Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis

La version espanola de este articulo se puede encontrar en:http://ssrn.com/abstract=2433220Joseph Raz's famous theory of authority is grounded in three claims about the nature and justification of authority. According to the Preemption Thesis, authoritative directives purport to replace the subject's judgments about what she should do. According to the Dependence Thesis, authoritative directives should be based on reasons that actually apply to the subjects of the directive. According to the Normal Justification Thesis (NJT), authority is justified to the extent that subjects are more likely to comply with right reason by following the authority's directives than by following their own judgments about what right reason requires. In this essay, I consider a number of ways in which NJT might be construed as a justification for authority. First, I evaluate NJT construed as a principle that would provide a practical justification for an individual to accept or recognize a particular person or persons as a preemptive authority. Second, I evaluate NJT construed as a principle that describes the conditions under which a state or legal system is morally legitimate. I argue that NJT is true under none of these interpretations.

10.1023/A:1006494607817

Inclusive positivists subscribe to the Incorporation Thesis, according to which it is conceptually possible for a legal system to have a rule of recognition that incorporates moral norms. Joseph Raz counters that inclusive positivism is inconsistent with the nature of authority. This influential critique depends on a number of controversial theses about the nature of authority and legal systems. Most conspicuous among these are the Authority Thesis, which asserts that every conceptually possible legal system claims authority, and the Preemption Thesis, which asserts that authority figures (or ought to figure) into practical deliberations by replacing the subject's evaluation of the balance of reasons. In this essay, I challenge an underlying assumption of the Razian critique also depends on a thesis that has gone largely unchallenged in the literature: according to the Instantiation Thesis, law cannot sincerely claim authority unless it is capable of instantiating authority. I argue that this seemingly plausible thesis is false, in part, because there is widespread disagreement among legal officials about what authority is.

10.2307/3505051

Inclusive positivists subscribe to the Incorporation Thesis, according to which it is conceptually possible for a legal system to have a rule of recognition that incorporates moral norms. Joseph Raz counters that inclusive positivism is inconsistent with the nature of authority. This influential critique depends on a number of controversial theses about the nature of authority and legal systems. Most conspicuous among these are the Authority Thesis, which asserts that every conceptually possible legal system claims authority, and the Preemption Thesis, which asserts that authority figures (or ought to figure) into practical deliberations by replacing the subject's evaluation of the balance of reasons. In this essay, I challenge an underlying assumption of the Razian critique also depends on a thesis that has gone largely unchallenged in the literature: according to the Instantiation Thesis, law cannot sincerely claim authority unless it is capable of instantiating authority. I argue that this seemingly plausible thesis is false, in part, because there is widespread disagreement among legal officials about what authority is.

Law, Autonomy, and Reason

Joseph Raz’s recent discussion of law’s autonomy and public practical reasons, in response to an essay by Gerald Postema, provides further illumination of Raz’s own view of the nature of law; it forcefully challenges Postema’s purported identification of the defining task of law; and it clarifies the relationships between a number of strands, or theses, that enter the debate over an appropriate theoretical model for law. It is not necessary to locate this discussion within the more general setting of the conflict between Natural Law and Positivism—nor is it in any case clear that that sharp contrast is sustainable. Within the traditionally accentuated divide between Natural Law and Positivism, to talk of the autonomy of law would be taken as a simple positivist proclamation against the subjugation of law to moral standards. What emerges from Raz’s article is a subtle interplay between different characteristics and expressions of the law, which is capable of entertaining moral influence and social objective whilst retaining clear theses that seek to capture the distinctively legal nature of the phenomenon under investigation.In Raz’s recent article, the distinctive nature of law is still linked to an idea of autonomy expounded in terms of the sources thesis and the pre-emption thesis. The former identifies legal materials with legal sources free from the constraints of a further evaluative check, and the latter provides legal reasons to act for those subject to the law free from the consideration of further extra-legal factors. The greater sophistication of this concept of autonomy rests on the allowance Raz gives to the impact of moral factors and issues of social cooperation on legal reasoning, and his acknowledgment that legal reasoning itself is not autonomous.