According to Raz, the sources thesis is essential

According to Raz, the sources thesis is essential to the authority of law. Does it follow from his account that authority is at heart a matter of power (as a sceptic would maintain) rather than a rational virtue? Can Raz avoid this conclusion and remain a positivist?

It is contended that Raz and his articulation of legal positivism remains intact after careful analysis, if somewhat buffeted by the arguments inherent in the question as posed. To fully appreciate the concept of authority as Raz develops it, one must first consider how Raz has defined the sources thesis and its relationship to the authority of law.

The source thesis as developed by Raz is the culmination of his logical progression in the development of a flexible and comprehensive tool to define legal positivism. Raz fashions a three headed thesis comprised of social, moral and semantic components, of which the social thesis is the most important.^[1] Raz emphatically states that what the law is and what it is not is a social fact –his corollary proposition is that a rule is only a legal rule if it meets a social condition.^[2]

Raz proceeded in his analysis to articulate how the social thesis becomes a cornerstone for the justification of law as a social institution, a concept tightly allied by Raz to three elements that determine the true existence of such systems – efficacy, institutional character and the source of law.

In this context, Raz elevates the source thesis to one of both complexity and prominence. It is submitted that Raz in his definition of both efficacy and institutional character as separate tests that identify the existence of a legal system, in fact renders them as sub-compartments of his source thesis. Raz is certain that the source thesis, an acknowledgement that all law is fully determined by its social sources, is the most important element of a legal system.^[3] He defines his social sources as including any extraneous ‘interpretative sources’^[4] that may exist in a society.

Raz stipulates that a law has a source if its contents and existence can be determined without resort to moral arguments. Raz thus includes both legislation and a wide range of societal facts as defining the law and its authority.

The Raz definition of law as an aggregation of community and societal custom, habits, and shared perspectives is a far cry from the seminal Austin concepts of legal positivism, ones centred upon the notion of a irrefutable ‘sovereign power’ that promulgates law as a command that is reciprocally enforced by sanction, all crisply delineated from any moral considerations.^[5] In contrast, it is plain that Raz perceives the authority of the law in less stark and more indirect terms than Austin would have accepted.

The source thesis as posited by Raz has two functions. The first is its utility in categorising and systemising the interconnected aspects of law (a purpose that all legal positivists from Austin onwards would endorse). The second function is to provide publicly ascertainable standards that are binding upon society.^[6] The state power as contemplated by Raz to achieve these legal societal purposes is held in a collective sense by the community; there is no supreme and authoritative sovereign lawgiver in the Raz model.

However, it is equally plain that Raz does not attribute ‘rational virtue’ to his concept of authority. By definition, virtue is a moral consideration and therefore one that Raz and positivists generally would not permit to enter the authority equation. On the subject of unvirtuous law, Raz suggested that ‘…Even a bad law, as the inevitable official doctrine, should be obeyed for as long as it is in force, while lawful action is taken to try and bring about its amendment or repeal’. It is submitted that this perspective internalizes authority to within the society, consistent with Raz’ thesis that law is fully determined from social sources.^[7]

Raz considers the question of power in relation to law in another sense that bears upon the present question. Raz has stated in a number of his works that consistent with the source based notion of all law, the authority to create or administer the law must be either legitimate or de facto.^[8] The use of the term ‘authority’ has a strong power connotation; legal systems may only claim legitimacy through an implicit or express assertion that the system possesses the power to maintain such authority. The power to adjudicate legal issues and to the ability to maintain regulatory and enforcement systems places the legal system in a position of supremacy within a society, but it is a supremacy derived from societal forces and desires and not a sovereign influence in the Austinian positivist sense.

It is submitted that in the Raz interpretation of the institutional character of the law, the legitimate legal system will inevitably reflect the social fact of the society. In this fashion Raz closes a philosophical loop in his conclusion that ‘…conformity to moral values or ideals is in no way a condition for anything being a law or legally binding. Hence, the law’s conformity to moral values and ideals is not necessary^[9]. It is this proposition that cements the Raz position as one within the positivist camp.

Bibliography

George, Robert P., (ed.) The Autonomy of Law: Essays on Legal Positivism (Oxford: Oxford University Press, 1999)

George, Robert P. “What Is Law? A Century of Arguments.” First Things: A Monthly Journal of Religion and Public Life Apr. 2001:23

Raz, Joseph. Ethics in the Public Domain: Essays in the Morality of Law and Politics (Revised ed.) (Oxford: Clarendon Press, 1995)

Raz, Joseph. Practical Reasons and Norms (Oxford: Oxford University Press, 1979)

Raz, Joseph. The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979)