1 Columbi a L aw Sc hool ars Sc rchiv e hi hol p A larship ublication s cho Faculty S Faculty P 1989 Facin epl y g U p: A R az Joseph R Co lumbia L aw Sc hool , [email protected] olumb ia.edu s and a ddition al w ork s at: https://s cho larship .law.columb ia.edu/fa culty_s cho larship Follow thi Law C s Part of the ommon nde d C itation Recomme ly , 62 p: A R Facing U az, Joseph R S. C al. L. Rev. 1153 (1989). ep larship cho https://s larship/757 t: Available a cho culty_s ia.edu/fa .law.columb rchiv ou for f s R espon se or C omme ccepted for en a e. It has be Thi larship A s at Scho ublication aculty P ccess by the F n a ree and ope ought to y nt is br aculty S ized a rchiv e. For mor e infor mation, p lease contact uthor dmini strator of S cho larship A y an a larship b cho inclusion in F . ia.edu aw.columb [email protected] donne
2 REPLYt A UP: FACING RAZ* JOSEPH one's across of coming feeling peculiar the with familiar all are We perceived they how telling others overhears one when as objectified, past contri- the Reading role. hero's the played one in which event certain a realise me made it particular, In that. like bit a was issue this to butions while much, too all writing by paper tolerant the abused I have how expressing and ends, loose many so to fortune, hostages many so leaving a like is it because embarrassing is also It ideas. half-baked many so commis- and omission of sins my to repent confessional, to the summons the declining while that, of amount a certain do I'll recant. to and sion, reform. character a thorough to undertake invitation to time more Given I am. than repentant more be probably I should my modify to need greater a realise to come probably would I cogitate, preliminary a only is it for reply, this from evident be will than views contribu- the by made points thoughtful and careful many to the reaction I times At are tentative. my comments times At symposium. this to tors I cases all In considerations. careful require which points overlook will essential the whether responsibility be my to I take this see for to strove defence its But defended. be could past the in I advanced position more were forward put have I views some that recognition requires others. than considered well less were some and others, than peripheral concentrated be to tends me at addressed criticism the Happily, the on reply my focus to try will I issues. central of number a around I make that. just is reply My criticisms. these by raised points essential suggestions and presented ideas rich many the on comment to attempt no my of criticism the to respond merely but articles, various the in made them. within work for Craner Carl and Munzer, Steve Fisher, John Dolinko, to David grateful am I t Article. of this part of a draft on comments D. College. Balliol of Fellow and University at Oxford Law of Philosophy of the Professor * University. Oxford 1967, Phil., 1153
3 SOUTHERN 1154 LAW REVIEW [Vol. 62:1153 CALIFORNIA REASONS-ORDINARY AND I. EXCLUSIONARY of law Our understanding unless defective greatly it is includes and in of the role of law sound practical reasoning. The on a view is based theory is that law is practical, first its essential func- precept of legal that tion is to its subjects' reasoning play a role in I will do.I to about what proposition below. I mention it here return it means that to this because of assumes an understanding of practical rationality. I wish a theory law that more of this subject to offer, or account I knew of a complete I had endorse. Unfortunately, my one of it leaves much to be I could account mistakes pointed out in are symposium. Stephen Some desired. this clearly right in saying that I have failed to provide an adequate Perry is 2 explanation the uncertainty or of role of reasoning. risk practical in On this however, occasion, I largely will consideration a confine myself to of reasons. the case against exclusionary OF CONFLICTS OF REASONS REALITY ON A. THE A the reality of conflicts of reasons are called for as few words about to of the special type a discussion conflict to which preliminary a of give rise. According to Moore, what exclusionary as con- reasons appear of may in fact flicts reasons in be which cases reasons to subject are into exceptions. taken Once account the appearance the exceptions are dissolves. This seems to me to be of Exceptions are at conflict mistaken. when consider rules, especially authoritative, institutionalised home we are rules. There to a reason. no exceptions merely cases to There are This point is the cornerstone of Burton's contribution to this symposium, in which some 1. of its are most usefully illustrated. See Burton, Law as Practical Reason, 62 S. CAL. L. implications 747 (1989). REv. Perry, See Reasons, Uncertainty and Legal Theory, 62 S. CAL. L. REV. 913, Second 2. Order is inclined (1989). 924-25 Perry can to accounted uncertainty that think be regarding for only by still a event may happen, etc.) as reasons. I (that tend to resist this view. I beliefs people's certain that in these cases, as in reasoning which is think of uncertainty, reasons for actions arc myself free general) facts, though they may be facts about the evidence available to partic- (in belief-independent This assessment necessary to account for the difference between our reasoners. of Robert and ular is that who Roberta, let us say, that it is likely both commodity prices will decline in the near of think, and who both reach this conclusion by reasoning in the future, way from the same beliefs. same Assume however, that Robert has available to him information not available to Roberta, the further, or relevance which he failed to appreciate, and which should have alerted him to the fact existence of but commodities in price. We wish to criticize him, rise not her, for failure in reasoning. that will difference is not in the beliefs which were their reasons. It is in the evidence available to them, The that is the existence of facts that Robert could in found out or could have have about, to known be reasons bearing on the issue. my discussion is confined to guiding reasons. Beliefs Throughout, (guiding) reasons are in explanatory For example of the reasons. an between the two distinction J. RAz, see PRACTICAL REASONS AND NORMS (1975).
4 1155 FACING UP 1989] not apply. But where it does apply, it may still be overrid- it which does A promise was voluntarily given ought to be or den defeated. which overridden is need to attend to an emergency, it is not by it If the kept. such reason keep the promise in to cir- no there because overridden is 3 but cumstances, a greater because there is reason it. with conflicts which Contrary Moore's observations, to the reason for accepting the real- conflict that "our subjective emotional experiences of evi- are not ity is 4 objective dence of ... moral is There features." emotional special no conflicts, the existence of of nor would characteristic experience in belief great relevance if there was (at least not in the way indicated by it be of not with are the discovery of some mysterious Moore). We concerned are facts by the traces they leave in our moral indirectly which observed substantive whether is not a conflict question reasons emotional life. The a conceptual one. It is neither an moral about the question. It is issue emotional nor about the content states, morality, but our of structure of property of the concept about reason. a formal of for The reasons considerations are action an of count favour that in think of them as that facts, statements of which form action. We can the the sound inference to the conclusion that the action ought premises of a done. considerations which establish the That of the be to disadvantages as well, does not in the least show that action reasons do not obtain the nor it show that the reasons are subject to an "exception." exist, does reason is there. The inference drawn from it (that the The original still be ought act done) to conflicting is considerations still valid. The merely conflicting reasons, that is, that there is also a sound show that there are 5 be act ought not to the done. that conclusion the to inference They belong to the lower Rules of any two-level are different. level understanding reasoning. That is, they are based on way of practical rule reasons, based upon a number of each and they reasons. Usually, is rule judgment the scope of the within those reasons defeat a reflect that own account of this kind of conflict, which includes the presence of exclusionary rea- 3. My more can but we is overlook the complexity here. sons, complex, Authority, 4. Razian Reasons, 62 S. CAL. L. REv. 827, 848 (1989). Law, Moore, and conflict explanation not amount to a contradiction. For an a of the sense of 5. Such does "ought"-sentences, which explains how it can be that we ought to perform an action while also being that we ought not to do so see the REASONING, 11-15 (J. Raz ed. 1978). This case PRACTICAL presupposes account inferences practical are that defeasible sense by philosophers the in explained A.J.P. Kenny and R. Chisholm. See Kenny, Practical Reasoning and Rational such in as Appetite, REASONING, at 63; Chisholm, Practical Reason and the Logic supra, Requirement, in PRACTICAL of REASONING, supra, at 118. PRACTICAL
5 1156 [Vol. 62:1153 LAW REVIEW SOUTHERN CALIFORNIA though not all, conflicting reasons. Rules are, meta- various, necessarily expressions phorically of judgments about the of speaking, compromises, Here, of exceptions comes into its own. Char- outcome talk conflicts. of "simply" acteristically, cases are outside scope of the rule the the main if reasons that support the to such rule do not apply falls case cases. A to the rule when some of the main under for the an exception reasons to case, but the "compromise reflected in the rule" deems rule apply the other, to reasons conflicting prevail case. It is in this sense in such a that an save life," if true, is to exception to the rule, "You may deceive if there is such a rule. Since exceptions belong to the "Never deceive," rules logic do not apply to reasons, they cannot be used to show of and do not In fact, exceptions to rules exist precisely that reasons conflict. 6 conflict. do when reasons AMBIGUITIES B. SOME NON-EXISTING that Moore thinks term the I been using have rea- "exclusionary three different senses; Perry thinks that I have been using it in sons" in think both are I wrong. Exclusionary reasons are reasons two., they against for certain acting reasons. I as him, is, This understand the sec- Moore's senses. As he notes, I explicitly ond and reject the of mention two in which he thinks that I senses using the term. The first other am identifies exclusionary reasons with (first-order) reasons not to sense in engage thoughts, or not to reflect on certain issues. This is, certain alleges, Moore of the term in the sense passage: the following France... a spend her holidays in to Jill... faces has rule Jill made but she has no intention to many on the conflicting considerations, act reasons. has adopted a rule to She her holidays in of balance spend she did so precisely in order France spare herself the necessity and to deciding year what to do during the holidays. She adopted the of every order on to have to act in the balance of reasons on each not rule in the is like having decided rule advance what to Having occasion. When the holidays come she is not going to reconsider the matter. do. mind already Her made up. Her rule is for her an exclusionary rea- is 7 ... son remarks are to what we say, and the exceptions about exceptions to rules apply 6. also There as to them well. I that one should never deceive, If assert nevertheless admit to an exception I may deceit is necessary to save life. What we say expresses our judgment on when the relevant consid- all erations are aware of, and is subject to exceptions when the main reasons which apply to the case we overridden are particular in circumstances. See Raz, Reasons for Action, Decisions 7. Norms, PRACTICAL and REASONING, in note supra at 140-41; cf. Moore, 5, note 4, at 855. supra
6 1157 19891 UP FACING in its proper is used here reason" that me "exclusionary It to seems reason. an exclusionary is rule For her Jill, above. explained sense, as to having to avoid true, it is is, a rule such adopting for reason Her she because be This may holidays. her go on where to every year decide resorts, holiday of various merits relative the on reflect to like not does the uncertainty avoid to be a desire may reason be. Her need not but it of a number decide, or to having anxiety of the be, will she to where as rule. for the her reasons they are they may, they what Be factors. other is to a reason The rule the rule with itself. confused be to They not are considerations on certain not acting reason for well as a as France, go to deals this attractive particularly offer in Ibiza that hotels example, (for on reflect to need the desire to a is avoid the rule for reason If the year). is mind one's since if goal, this with help can the rule certain matters, disappears. reflection the unwanted reason for one up, made already to not reason no has rule she the adopted has Jill after even that Notice such wants to contemplate resorts. If she merits various of on the reflect so, do to need any has longer no merely She do to so. is free she matters reflec- such of outcome the on acting not for reason a has she because the of the purpose was This instead. her rule follow She should tions. reflect to need her the of relieves It passage. original the in stated rule as if so doing in wrong is anything that there implying without on merit, the to.' wishes she reasons." "exclusionary which I use in another sense Moore detects a counts as what change reasons "actually exclusionary this sense In 9 rea- other "exclude... they action," an of characteristic right-making 1 ' to not allow reader advises the Moore all." at counting from sons... exam- special... his reasons', of 'exclusionary explicit definition "Raz's in tradition Kantian the within both of alignment the and of them, ples rea- exclusionary of interpretation third [this] us to [to] blind ethics, 1 that is ambiguity the ascribing for detect I can reason only The sons." I "some of [Raz's] best examples of exclusionary reasons are most fruit- 1 I think that " interpretation." justificatory this with fully unpacked his that He must know here. to be charitable trying simply is Moore in has he examples the of analysis my that show correct, may if claim, that where, given may be cases rationale. There their differ in cases will different usual, As 8. so doing if cons and pros the to not contemplate one for is reason there unreliable, is one's judgment to this puts an end or decision rule that one's given But judgment. on one's one to act may lead merits. the on idly, reflect, reason to a not longer no is there it adopted is once danger, 857. 4, at note supra Moore, 9. Id. 854. 10. at at 11. Id. 857. 858. Id. at 12.
7 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA 1158 in terms exclusionary reasons, is mistaken, and that those exam- mind, of to be in some other way. He must know that there is ples are understood point to ambiguity, but he gently prefers to ascribe to here nothing to an than a mistake. me an ambiguity rather technical a adopted to explain fea- is reasons" "Exclusionary term reasoning which are frequently ignored. The analysis of the tures of our reasons in practical thought is, therefore, anything but a role of these the My argument was that of obvious. straightforward observation to disregard certain reasons. Moore suggests that promising binds us it better interpret promising as turning reasons to count would be which ones into not count. I have pointed which do he and out, acknowledges that the which we are to disregard are not canceled. He the fact, reasons that the must mean that they are not canceled on effect, first says, in I preempted are they the second level, for they are canceled level but on 1 3 the rightness affecting from of This the yet action. is more technical I find it difficult to understand what it means. We terminology, and means an means. It simply reason a rea- what exclusionary understand to act for a certain reason. We son for example, familiar with not are, promising partners to decide how their spend the weekend in spouses to light of their own desires, disregarding what they think their partners the want. Their promises exclusionary reasons, are reasons a to con- exclude may the any decision they for make. sideration from ground being no mystery about the nature and existence of exclusion- Hence, there is how reasons. which are neither canceled, nor excluded ary reasons But or overridden, fail to affect the rightness can action is not obvious. of the not I to deny that some further technical distinctions may be do wish Moore that the idea intimated by like may figure nor something useful, once it receives a proper explanation. But among provides them, Moore none. is possible that Moore is it in suggesting that my analysis Still, right all or some cases fails on its own terms, that to meet the points I of am making needs not exclusionary reasons but some other notion. The one likely candidate that of canceling reasons. Think of it this way: most is John, (undefeated) is subject to an of exclusionary reason. Think who his assume it affects the outcome of us deliberations, that is, that Let that action indicated by the balance of all first-order reasons is different the the by required from the balance of the unexcluded reasons only. action John, I is acting correctly have argued, he disregards the only if excluded See id. Perry seems to entertain a similar view 13. the only way in which to understand of what calls "objective" exclusionary reasons. See he supra note 2, at 928 n.48. Perry,
8 19891 1159 FACING UP his reasons deliberations. in mean not do I think not that must of he only them, not he base that must action his act on them. He must not for Before he those acts, reasons. from take action right the to perspec- his the tive is the is by one which indicated unexcluded reasons. How is he to own judge conduct his that Assume he after acts? he acts correctly of of the ex ante considerations. His action may be from the point view other the first-order reasons, but on the of hand with out of balance step with the exclusionary it is in accord this reasons, and explains and justi- fies deviation the first-order from reasons. He could not conform both to the exclusionary and them to the reason, and exclusionary prevails. one right. He could not conform to both the balance of this is Well, almost first-order reasons and exclusionary if the reasons he reasons correctly. makes a mistake. While completely disre- Assume, however, that he garding the excluded and them reasons letting his motiva- part no play in performed the action which is tion, fact indicated by John nevertheless in of the first-order the balance all He reasons. simply Para- miscalculated. doxically mistake his to rather fortunate. be seems man- of Because he it both to aged exclusionary reason (he did not act for any to conform the and to the reason) excluded balance of first-order reasons. a Up to point is familiar puzzle. It this a general feature the difference is a of between ex ante judging actions post. ex them judging and when Sometimes try- mistake before us act make a on which turns out to the ing evidence we be a to lucky perform action one, and we an evidence which the partial available at the did correctly time, evaluated, which is in not justify, but the justified of all the facts of the case. fact in light But reasons are exclusionary this way? to be understood in As clearly some recognises, Moore reasons are. Many exclusionary are "evi- to is, their justification is that conformity character. dential" That in will them lead to improved conformity excluded reasons. This with the the case, example, is for person refrains when a from infor- on acting new to too intoxicated, or because unable tired, trust is mation he otherwise its significance. Clearly, if by luck his his conforms to judgment of action furnished the the reasons by dismissed, he information which one can no is true The complain. same exclusion is justified if the rational on saving grounds of or labor, anxiety, time, which improving while not com- reasons, specifically conformity the agent with the excluded make better ply with reasons generally. are justifiably Certain reasons excluded. does act for One not that exclusion Supposing the them. would have a suboptimal led to action, that a miscalculation led the but
9 SOUTHERN LAW CALIFORNIA REVIEW [Vol. 62:1153 1160 agent to action, we the optimal him simply lucky. count There no is mystery or paradox this. in times, the other At exclusion directly justified is by motivational to disregard his own interest in decid- considerations. If Colin promised on ing the education he has discharged of son, his then did he duty his if indeed disregard his misunderstanding his interest. If of merits of the fortuitously schools various one led him choose to inter- his suits which we ests can well, then all as he is lucky. say is that Perhaps we should also that say unlucky, is because his son mistake a but for this school better is which son would have for the been But is no chosen. this condemning ground for after all the for decision, parent's the interests matter as well, that assuming in are we and these case and this within bounds they outweigh those of son. the These examples individual are (some) exclusionary of the way rea- My work. sons introducing the concept aim in of course ambi- was more claimed that tious. I certain it concepts, helps explain especially those of decision, mandatory rule, authority, by ascribing promises, and a to them role in reasoning. special practical part my explanation that Does of sur- apparent vive the luck through paradox of miscalculation? Again, it seems me that it does. There to however, is, complicating a in factor and it may explain Moore's suspicion that I need something these cases, a stronger than complicating mere The exclusion. the men- is factor that tioned explained are concepts in of protected terms reasons. These are, first- mentioned, of an exclusionary reason and a combination as Moore a So these reason. order indeed explained notions are to reference by stronger than something reasons. mere exclusionary Rules, promises, decisions, affect and decrees authoritative not outcome the only by excluding certain considerations, by adding certain reasons but also to the first-order balance of does How reasons. that the case of factor affect luck through miscalculation? We need to distinguish between two ways in the which the first- reasons provided order by directives, promises, authoritative and rules, decisions can related to the reasons be excluded by the exclusionary aspect such protected reasons. of reasons may be The first-order meant reflect to ones, they the or excluded meant to add to may be A them. decision is typically meant to reflect reasons which the (or led should led) to An authoritative rule prohibiting the marketing of a have it." decision A meant 14. is reflect which were within to reasons ambit of the factors consid- the ered the agent. by precise of this condition A exploration a matter is some complexity, and cannot of be undertaken here.
10 UP 1989] FACING the toy make that reasons the reflect to meant is similarly toy dangerous plaintiff the that decision court's A children. by use for dangerous too to meant likewise is damages pay to liable is and defendant the defamed decision. the to prior plaintiff the to applied that considerations reflect which reasons reflecting while gains, capital on tax a imposing law But a con- should appreciation capital from benefit who people that indicate It reasons. the excluded to adds also projects, public financing to tribute what to and time what at pay, one should much how precisely settles creates thus It on. so and made, be should contributions such address "new" first-order reasons, such as, to file reports within a certain period, a than rather sum a particular pay to or period, certain a within to pay bal- right the on acting of we talk When etc. more, little a or less little we mean account, into taken reasons the excluded with reasons, of ance created reasons new first-order the including reasons, first-order all the first-order "dependent" the excluding etc., but law, the promise, the by reflec- a are merely etc., which law the promise, the by created reasons to allowed not be should which and reasons, first-order other of tion 15 twice. count theory a of part as thesis justification normal the forward In putting is, in authority of rationale that the fact the emphasized I of authority, is Authority reason. with conformity facilitates it that resort, last the securely more and better is reason with conformity where only legitimate con- is This own. one's on acting by than authority following by assured be, may demand authority's the to conformity that fact the with sistent occa- on example, For sub-optimific. general, in not though occasion on is it which reasons underlying the correctly to reflect fail may it sion first- of the balance to again conformity here Therefore, reflect. to meant misunder- from result may which case individual in an reasons order is directive authoritative an with to conform do to has one what standing previously the all includes balance the that provided mistake, a lucky first-order new the plus ones), excluded the (including reasons existing first-order dependent the excluding but authority, the by added reasons authority. the by added reasons for the accounts satisfactorily of analysis sort same the that I believe has analysis the course, Of promises. observing in mistakes lucky similar Some promises. of the validity for reasons different the to sensitive be to relations, special cementing to contribution of their because binding are people's other on relying for provide they basis of the because others THE RAz, J. see counting, from double the argument of explanation detailed For a 15. 59 (1986). FREEDOM OF MORALITY
11 1162 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA Depending on reasons for the validity of the promise, the conduct. the of it primarily reflect motivational considera- exclusionary element may or tions, insurance against conduct change of reasons underlying if change, or are to change, thought etc. The analysis will with the vary case of kind involved, but always, I will make think, use the of concep- analysed. tual structures I I thinking may be wrong in Moore but that, has not provided to show an argument that provisionally am. con- I I clude that Moore has detected an ambiguity neither in the notion of "exclusionary reason" nor a defect in its application (at least none that is indicated discussion by his the ambiguities). of another Perry alleges yet "exclusionary ambiguity in reasons." Sometimes the term means not a reason for a certain to act reason (the objective interpretation), other at whereas it times means a reason not to 6 rely one's belief on a reason (the in subjective interpretation). Like Perry Moore, my is really criticizing analysis case authority) (in this of rather pointing than to ambiguity. an the I have, in past, considered his suggestion, and for ill I good or rejected have the following it in terms: exclusionary Incapacity-based all others.., reasons from differ in that depend they circumstances the on agent the time the of at he decides do. This what to incline may think people to reasons such that not are exclusionary reasons [S]ome may at all... incapacity is a claim that reason for not acting one's judgment on (because it likely is go to is wrong). It reason for not a on acting not reasons. valid obvious is It the fact that that may judgment one's be wrong is in such circum- stances ground the for the reason. also is But it the true that reason is for one's reason mistrusting a for judgment rather than on not acting certain reasons? One cannot a reason act for one unless its believes in practical validity. The reason a relevance not of reason to a for act p is, that as the practical therefore, same the the reason of relevance not to act p, one believes for if is p that valid reason. a obvious In an the sense is a reason not to act on latter beliefs. But one's this sense in every second-order is also reason reason a on to refrain from or act to acting beliefs one's on reasons. in independent There is no argument can see which I which only reasons grounded shows that in temporary incapacity reasons are to not act beliefs one's on that they or are not 7 1 reasons. on act to not reasons take it that I passage this shows there was that ambiguity in no my usage. simply I chose a different analysis than that preferred by Perry. if Clearly, the argument cited here is good all, it at not only applies to See supra note 2, at 928-29. 16. Perry, 17. RAz, PRACTICAL J. AND REASON NORMS, supra note 2, at 48 (footnote omitted).
12 19891 1163 FACING UP but temporary also incapacity authority of cases based to superior on knowledge, which upon Perry attention. his focuses my judgment Was sound? It is based holding on that (1) second- all are reasons order also to act on reasons to act or not (2) one's judgment; no there is practical reason a between difference act one's judgment to on to act p and a that reason there on no special p; and (3) is reason to the construction prefer subjective some Perry) by (favoured in and cases The of these first not others. in still seems true propositions The me. to can be second the challenged in way. following It it true, is can said, be from the the agent before of view point of the the ante per- act, from ex evaluation spective. But of an action the ex from post view of point the difference. shows one's If judgment back not does one and happens conform to to then reason, one had reason one has done all to do if one acts a reason on not trust to judgment, one's but one acts wrongly one if to act for a had reason not this reason. By now argument famil- sounds mirror image of is It iar. the above canvassed the argument we consid- in ering alleged Moore's sense third "exclusionary of reasons." That discussion fallacy exposed this also the of do trust you not argument. If do not your judgment and act excluded reason, you the for comply with reason. the exclusionary If, or miscalculation, through luck never- you happen theless also conform to excluded the with reason, made you a lucky mistake. to seems me It therefore original that the second of my true. also is propositions the The trouble starts with third proposition. Even if falls true, it mark. short of the It that establishes merely reason to as is there much interpretation support the objective the as to support subjective interpre- does tation. not It establish one the superiority of over other. Fur- the thermore, is not the for the ground the fact that one's reason is in subjective inferior incapacity, or competence, distin- to reason enough these guish others and cases from the give subjective interpreta- a them tion preserving the one objective others? to the that I think defective though argument my was, can it further two be supplemented by pro- positions, which make reasons it good: (4) Ultimately, our and facts, are beliefs matter only inasmuch and because they at aim (Perry the facts. agrees this.) with me to This seems to suggest objective interpre- the that tation of the ordinary case. is true seems Perry also implicitly to agree the that fourth proposition provides general a in motive favour of the objective interpretation which cases in which all prevails in there is no special prefer the reason to one. There are subjective (5) reasons strong to a unitary prefer this is interpretation. If it should be the then so,
13 SOUTHERN CALIFORNIA LAW 1164 REVIEW [Vol. 62:1153 one. objective much This follows the from proposition. fourth The rea- son preserving a unitary for interpretation (while not denying the that grounds an for reason exclusionary sometimes are in subjective incapaci- ties, inferiority of judgment, etc.) the is that different cases shade into other. each Perry's discussion clearly shows very strains the nonuniformity. of regards He authoritative directives as subjective being for reasons, he takes authorities be primarily based to on expertise and superior knowl- edge. recognises He that I argue "sometimes" that are they based on reasons of coordination, but he fails integrate to this into point his fact, account. In my in view, political authorities are justified primarily 8 grounds on coordination, of though mixed these are with considera- tions of expertise. For example, expertise predominates in of matters consumer protection legislation, in but and there such other cases as tax- ation, where financial expertise (usually a plays modest) role justifying in governmental action, knowledge superior is mixed with considerations of the government's ability to achieve concerted society. action in Think also courts. of the one the On hand, appointed are they a with view to expert knowledge law to improve of the the quality their findings. of On the other they are hand, institutionalised as justified containing ways of and channeling disputes. Both justifications their role play in arguments the authority for courts. of the would be It awkward extremely con- to struct an of account authority which distinguishes carefully the role of objective reasons of subjective from that reasons. The different consider- ations closely are too intertwined. They mutually are supportive and are inseparable their in operation. Given strong this unitary a case for account, and the possibility of providing terms of it in reasons exclusionary (i.e., Perry's objective inter- of pretation them), which allows that some their of grounds have do to with unreliability of subjects' the judgments or the expertise the of I authority, conclude that case only not the ambiguity an for the but also a for case fault analysis the in remain unproven. C. OF THE PRESENCE EXCLUSIONARY REASONS Moore argues that my reasons believing for that exclusionary rea- sons feature importantly in our practical reasoning are inconclusive. In Practical Reason and Norms I tried to give both functional phenome- and reasons nological accepting for prevalence the of exclusionary reasons, See J. RAz, 18. MORALITY Or FREEDOM, THE supra note 15, at 56.
14 1989] FACING UP their though and occasional mere presence, be more validity, can directly by established appeal to examples. concentrates Moore phenome- the on argument. nological an argument takes be to it He the common that 19 of real structure of evidence moral reasons. is experience of people the that. It is not It features an argument about is concepts, our of based on the way they function and in our discourse thought. is an But that not adequate Moore's reply observation to that other are there ways of features I accounting He seems to me for the phenomenological isolated. right. to description of the phenomenological features be partly My which show exclusionary the of presence too far and was reasons crude undiscriminating. Moore's criticism concentrates exclusively invocation my per- on of 2 ceptions of assessments conflicting of what do. " rightly ought we to He such could there explanations of be conflicting that out points other However, assessments. disregards two he largely other our features of self-understanding which They are I relied on. the we some- that fact for example, in the presence of superior orders, times it is not think, that for act on the ordinary reasons us to to the That which apply case. task was to commanders, assigned our and what it that is precisely be is to someone's command. under disregards invocation, He my also again when confronted or with of orders, promises, two ways of assessing the matter, which the not do leave undecided, since we us which know but assessments prevail, a which two-level represent reason- of structure the presence of conflict within one than It ing rather merely evaluation. saying in itself expresses are tied; or that our hands see that we can that one reason points way, bound, by our but we are superi- our to allegiance by our promises, to act another way. ors, features are not expli- or These as expression of perceived conflicts of reasons. As I mentioned, cable the characteristic of they are certain are and only situations absent entirely from of reasons. ordinary conflicts that existence agree I their be may 21 other explanation, susceptible but of case rests in large mea- some my on the sure two arguments that Moore does not consider at any other great length. me briefly some of them. As I do so I will deal with Let rehearse Moore's of another namely that there criticisms, is an overwhelming Moore, supra note 4, at 861. 19. See such See also refers to my saying that in He cases reasons, or their evaluations, are 20. id. incommensurate, id. at but I do not rely on 863, in argument. incommensurability my In J. RAz, PRACTICAL REASON AND NORMS, supra note 2, at 41-43, I wrongly said that 21. the presence conflicting of alone be decisive assessments can of the belief in proof which reasons should be understood as exclusionary ones.
15 1166 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 62:1153 objection moral to validity the of any exclusionary reasons. Exclusionary reasons are reasons for not acting certain for reasons. Occasionally peo- ple have such reasons. The easiest way to illustrate this is, as we saw before, imagine to that someone promises not to act for certain reasons. For example, Jane may promise to disregard her own interest when advising a friend whether to leave USC for job a at Yale. Whatever advice would she give will be based on all considerations the which bear on the matter, except that one. If that promise is binding, then it consti- tutes an exclusionary reason, reason a not to act for a certain other rea- son. can I see ground no on which to fault the promise. is It easy to imagine many circumstances in which it would a be very sensible prom- ise. Even when it is rash or ill-advised, does it not seem to suffer from any of the defects which render a promise invalid. My example appears innocent enough, but appearances can be deceptive. Could it be that the promise is invalid after because all it a is promise to do something which may be moral a error do? to This seems to be Moore's belief. He says that morality never "exclude[s] morally compelling considerations from counting to determine the rightness of keeping some promise following or some order. Morality never does this because nothing can be excluded in the balance of objective reasons of 2 morality without leading moral to error." am I assuming that my in example Jane's interests will be significantly affected by her friend's deci- sion, that and they are therefore "compelling moral reasons." What I cannot see is how their exclusion may lead moral to error. suspect I it is the other way round. Disregarding the promise will be a moral error, for it commits the error Moore is worried about. It excludes a binding promise from moral the balance. We seem to be in a quandary. If no reason is to be excluded, then certain promises, and other considerations, which valid if constitute exclusionary reasons, must be denied any moral validity. On the other hand, if these considerations are to be admitted as morally valid, then other considerations will be excluded by them. This shows that Moore's rejection of exclusionary reasons is an arbitrary choice of one side in a symmetrical quandary. Not that the quandary is particularly puzzling. basic Its features are present in every conflict of reasons. After all, one if reason is more important than another, and therefore outweighs it, the weaker reason is 22. Moore, supra note 4, at 872-73.
16 1167 1989] FACING UP under- for we error, moral is a this think that do not We upon. acted not to is for action reasons are considerations moral that say to that stand are They reasoning. moral role in proper play their should they that say is, that be done, to ought what to determine sufficient presumptively all But done. to be ought what determine they equal, being things other recognising error in moral is no There equal. always not are other things circumstances, particular in some been defeated, has a reason that is no there Similarly, reasons. weightier of other, presence of the because reason. an exclusionary by excluded it has been that recognising in error does it that and reason is a that it say to both sense makes it times Both done. to be is what not determine two the between the difference is what question, the This leaves being reasons between difference the What is reasons? of defeating ways Without question. crucial a This is excluded? and being outweighed is it a But incomprehensible. is reasons of exclusionary talk it, answering intelligibility the accepts question His Moore's. from question different indicated I have their validity. challenges and reasons exclusionary of fails. the challenge think I why the of the question briefly to examine useful be nevertheless, may, It one familiar the of reasons, conflict of types the two between difference it excludes. the reason and reason an exclusionary between the one and exami- a medical for due I'm but hungry, I'm conflict. familiar is a Here a I have stomach. an empty on out carried be only can which nation both. satisfy cannot I (now). eat to not reason a and (now), to eat reason a different consider Now it. satisfy should I important more is one If eat always should One hurry. a in eat to wrong it is that case. Assume conflicts say, partially may one reason, This way. measured in a slowly, of ways certain eating, of ways Certain eating. for reasons other with any are eating of ways But other it. violate for eating, reasons the satisfying more is the which question the conflicts partial In such untouched. should one both, satisfy one can Since arise. not does reason important so. do always The conflicts. partial generate reasons exclusionary way similar a In with conflicts partially for pleasure to eat not one, is there if reason, can eat one for both, satisfy can One eating. for reasons (first-order) eating in have pleasure can that one (Notice pleasure. for eating without exclusionary an why is That pleasure.) for eat does not one when even first- the excludes always It conflicts. in such triumphs always reason
17 1168 [Vol. 62:1153 REVIEW LAW CALIFORNIA SOUTHERN reasons it aimed against. Ifp is a reason to A and q is an exclu- order is is only a partial them between for A p the conflict not sionary reason to be satisfied one does A for a reason other than p. Both one. can if involving exclusionary reasons are a special To be sure, conflicts partial of kind conflicts. They differ in important respects from ordinary partial conflicts. example, is pleasurable eating For that agree, us a is, let It is satisfied if I eat, for whatever reason. Suppose I reason for eating. the am My eating satisfies all hungry. reasons for eating I because eat are. Since, that there pleasure actually the whatever I eating, derive from not I pleasure, I also comply with the reason I have not to eat eat do for for pleasure. that fact that eating Note the a first-order is pleasurable is reason. is to simply It a reason to is distinguished It eat. be from the that I may have second-order eat for pleasure. As Moore reason to there be conflict notes, can or between more two second-order reasons these turn will and on my reason weight. So if a reason is eat but a not to to reason pleasure, it completely, eat for not merely partially, con- and with the reason not to eat for pleasure, and the flicts of the resolution 23 on the respective weights of these reasons. conflict turns rather cryptic point the way toward an explanation These remarks conflicts between of how first-order and exclusionary differ reasons from reasons, exclusionary why first-order reasons ordinary and conflicts of such in always "win" weight. regardless conflicts of to it is One way put say to that if exclusionary reasons even there is a are admitted in sense is excluded, which nothing consideration every valid plays role its (though course every reason of not is merely a matter "wins"). It of structuring of the reasons, proper their elucidating interrelations, and the this involves some reasons exclusion of by others. THE MORAL REPUGNANCE OF EXCLUSIONARY REASONS D. So far have argued that exclusionary reasons occur from time to I that they marked by giving a special structure to certain aspects time, are practical our of that they are and reasoning, paradoxical. morally not my previous of Much was with writing concerned to show that exclu- reasons are crucial to our understanding of various familiar nor- sionary mative concepts, particular promises, obligations, decisions, orders, in normative certain I call mandatory rules), and (which authority, rules The same will 23. true if for some reason be conflict between the the reason and exclusionary one first-order is the a partial reason but a head-on collision. not
18 1169 FACING UP 1989] authorita- that promises, show to meant are arguments these All powers. that way in the reasoning our structure the others and directives, tive practical in our function special is their This do. reasons exclusionary 2 " deliberations. a he has but arguments, these of any address not does Moore morally any be cannot there that to show counter-argument detailed 2 examples of form the takes argument " His reasons. exclusionary valid is, it if for way, that in understood be cannot law the that show which to taken be must he least, very the At binding. morally be it cannot then flawed. morally are deeply systems legal all then right, I am that if argue conclusion the to reach constructed be can his to similar examples Since are promises all are illegitimate, authorities all then am right, if I that, analysis. my against argument far-reaching is a on, this so and invalid, be to my view, is, in authority, of a structure being law, The They it. in reasons of exclusionary prominence by the part in explained is a law the way important an in that fact the reflecting dual role, a have the to force binding it claims First, authority. of system double-tiered sys- all legal while That is, considerations. contrary certain of exclusion to right the claim they exceptions, and defences moral certain allow tems and necessarily count, exceptions and defences moral which determine was itself law the which of basis the on those namely some, exclude adjudi- to authoritative subject are questions legal Second, determined. is case a Once system. a self-administering is law the since cation, to conform has one res judicata, becomes it once decided, authoritatively to is important It in law. mistaken is it if even adjudication, that to systematically law the in which case only the is this that remember 2 6 On others. excludes decree legal one in which is, that itself, excludes the is not aside) cases (special is excluded what exclusion of level first the examples, of Moore's Some considerations. non-legal certain but law considerations legal various weigh to discretion judicial on turn which 27 leaves still This argument. this to irrelevant are other, each against THE RAZ, J. 49-84; 2, at note supra NORMS, AND REASON PRACTICAL J. RAZ, e.g., See, 24. at 38-69. note 15, supra OF FREEDOM, MORALITY of cases individual of, validity the accept to seems at and times objects to, never 25. Moore His general own interests. one's on not to act of promises examples the such as reasons, exclusionary including reasons, exclusionary of any the validity rejecting him to commits argument of strategy his invalidate to enough is examples these against nothing find he can fact that mere The these. argument. doc- the both under reasons legal other it excludes is res judicata decision judicial a Once 26. estoppel. of collateral and of res judicata trines (7 S. U. 74 Kirby, v. States United to (referring n.129 869 at 4, supra note Moore, See 27. (1868)). 482 Wall.)
19 1170 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA to be much considered, much including about which am uneasy. I argument Moore's the of following is form: says, he If I am right, morally binding. Since I regard the conclusion then the law cannot be as question, open an find this I argument, even if successful, not altogether 28 compelling. However, I indicated as right, it fol- is above, if then he lows from my analysis binding no there that are promises, no legitimate authorities, cannot So etc. I escape his argument by denying the legiti- macy of the law. whether however, doubt, I the is successful. argument fails regarding I think that it involving statutes, adjudication since and 9 2 it. with start will I case simpler the me to seems this on which are matters These Moore written extensively has and illuminatingly. disagreement Our on this occasion is rather narrow. We need not inquire the of considerations into sort adjudication relevant for involving statutes. assume We can agreement question The there. of is the these of role considerations. aim My to illustrate is of sort the account which is required to make sense of legislation so as to show that involves it recognition exclusionary of role the of reasons, innocent a role moral of objections. certain decisions, example, For while otherwise well reason, will be supported by in deference considerations rejected to of 30 separation powers. of So The good. far so question only is what is the role of this separation consideration. Is first-order reason, powers of a or exclusionary an think one? typically, I that perhaps exclu- though not sively, doctrine the separation of of powers claims the existence of exclu- reasons. sionary Imagine an tax income law is which sensitive both levels of to income and its sources, to that unearned is taxed so income higher at a 28. that suggests Moore my entail views there difference is that a political the between obliga- of ordinary tions and of citizens the not think do I courts. that they do. It necessarily is that true are to apply [the law] "the courts bound view [its] merit," their of regardless of 4, Moore, supra note the same is but 835, at ordinary citizens. true courts and of Both citizens legally bound ordinary are act. Neither to so so are bound. necessarily morally to say that Moore subscribe to is right I the view common are additional reasons for obeying that there law which to judges, at least the apply in reasonably just societies. am not convinced But I amount that those binding moral to a obligation in all cases. He that the existence suggests an of obligation obey the to law reasonably in just a society is self-evident, any which doubts this should and analysis of hand on that be rejected out count. Id. 869. The point would have been more at he convincing the various had confronted that arguments I, others, and offered support of in our view. These arguments, way, by the rely not the do on exclu- sionary of the law. force It 29. be worth may observing Moore that to the objects the that law view makes exclusionary the on tier. He says claims first the claim that it is exclusionary nothing about the second tier, on is, in its that of res judicata. doctrine 30. and in the following Here I "separation of powers" paragraphs use its general sense in which is wider its technical than meaning in American constitutional law.
20 1171 FACING UP 1989] than for the same level of income. Imagine that earned rate income, his tax unjust, and that he is unfairly discrimi- claims someone that is that the is unearned should be irrelevant to against, nated his fact income claim possible be rejected. It is his that vari- his liability. In Britain will its for such a claim on adjudicating have systems legal ous provisions saying is that wherever there is a legal merits. based on All I am system it exclude certain considerations from being separation of powers will considered So take this courts. by the let's of the effect one as an example of separation powers. of the principle of of separation support differential taxation the does Why powers There is nothing in the doctrine to show that it is according to source? unearned more tax heavily. The doctrine leads the court just to income like say this: to something clearly the such a differentiation was of Since justice the issue of we are precluded from examining the decided upon by Parliament, rea- against on their merits. There may it an injustice here, or for sons be it is not for us to put it right. We are excluded from subject- but if so, of the decision to our review. ing wisdom Parliament's admission the Parliament allows the of of to So deferring authority courts may build into the law, but it is inconsistent exceptions which the the rejecting rationale of the legislature's enactment. with their basic precise not that this is the am meaning of the I Again, claiming English law, though it seems doctrine me a reasonable first approxi- in to I certainly mation. am that not how this saying is be doctrine the must The country. of powers," marks understood every name, in "separation espe- doctrines, vary greatly in detail, related of family whole a which cially the exceptions allowing limited judicial modification in the range of But all share the same they Whatever else rules. statutory of structure. they all set exclusionary reasons for the considerations they may do, for 3 may which courts act. of clear whether the same is true of the binding force me It to less is precedent. clear to me that seems It the English least law, at very until risk of repeating an earlier point let me the my view once again. The surprising 31. At clarify my explanation of separation of powers is not thing much that it makes it include an about so reason that it does not amount to much more. Why not say simply that the courts exclusionary as overriding have not regarding the differential taxation as unjust. The answer is that the reason an for does does show that it is not unjust. Nor powers it show that justice should not of separation not cases of taxation. It merely addresses the question: Who should see that justice be prevail in done the of injustice is based on this consideration? The reason why this consideration is when allegation adjudication be this statute, while it may from available to the court on other occa- under excluded already that was here first, and has Parliament adjudicated this particular question. is sions,
21 1172 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA 1966 Practice the Statement, while that it is, forbade Lords House the of to overrule a strong itself, included reasoning The element. exclusionary to this leading conclusion argument previous the mimics separa- on the tion doctrine. Today, powers of of that the rule the Court Appeal may overrule not itself, generally prohibition and the overrul- on lower courts ing higher ones, indicates the existence of similar exclusionary elements English the in Law. Beyond that, Common House of today even the subject an exclusionary Lords is to effect to reason that the not should it 32 pursue improvement every but only ones. clear Legal systems vary in If Moore is right matter. this any in arguing that exclusionary rules lim- of the courts iting right the are precedents to review indefensible, morally then this part is morally law of the indefensible. The problem lies I Must feel elsewhere. of the Lords' House power overrule to precedents reasons be subject exclusionary to for the Com- mon Law be to law? On the one they if hand, change can precedents whenever the balance reasons of suggests that would this be best, then they are bound not by them. All is we can say that bound are they by reason. On hand, in that sense the other bound no its legis- legislature by lation. are because binding Statutes not change Parliament cannot them, because but ordinary people cannot. Besides, they are binding Parlia- on until ment changed in accordance with due process But law. of is this good turn from when enough we courts? We to Parliament the can, and should, that the courts say make law. To that extent are not bound they precedent, since by can change But in they it. are they what sense bound they if can change relied it it is whenever courts the upon? are And if never bound, in what bound people other sense are if in by the precedent every which to case applies it can challenge people it the in courts? instinct My is to say theoretical the that possibility is immaterial. The practical difficulties a judicial in securing especially at hearing, the highest level, are perfect enough give to notion precedent the sense to of being but subject binding on all, distinguishing) (or to overruling by an See RAZ, THE 32. J. AUTHORITY OF (1979), 190 LAW for of application the point to the this House and J. RAZ, THE MORALITY of Lords, for supra 15, at 62, note FREEDOM, OF general its relevance the application for of my explanation authority. The of point discussed is further below. wrong to is Moore think position my that is early Dworkin, like see Moore, supra 866. 4, note at Dworkin a moral of what advocating was view the and should be. I merely described law is certain practices English of Common the Law. Dworkin was writing of how judges may overrule over- to come legal mistakes and give to the effect correct legal I was position. what judges describing may in existing law changing do an a one. Finally, my making and new Dworkin's early criticism of writing, which applies to his later writing as well, based was his endorsement of a coherence on view how of should decide judges cases, to which I am committed. See not Prof Raz, Dworkin's of Theory Rights, POL. STUD. 26 123 (1978).
22 1173 FACING UP 1989] court. ago I used this kind of argument to rebut Many appropriate years of parallel a argument Sovereign John that the Austin's bound be cannot 3 3 law it. since If it is sound, and if a similar can always change by it argument and to apply can the precedent courts, not need one then insist that precedent must set exclusionary barriers to overruling at least by rea- that typically some set exclusionary it true remains It courts. does sons limiting the grounds or some of review in courts. all in even whether am I far from clear refute reflections the above Moore's of his paper. His argument is said to be addressed arguments in Part III in the of exclusionary reasons understood against interpreting law terms in the first which attributed sense to he do not use Since term. this I "exclusionary reasons" in that sense he may be criticizing views which I we and been arguing at cross purposes. But I do hold, may not have suspect that Moore is arguing really against my terms in analysis of exclusionary the term. If so, I think that his argument reasons as I use simple He refuses to examine any reason. the points a for fails of in the previous section above, which show repeated exclusion- by me that may ary reasons is, That sound. that be justice of exclusion require may in some all reasons reasons, the judicial process rather than inclusion of example, to give effect to participatory in democ- order, for legislative to judges racy, and prevent or order it, in overriding from to establish in fairness decisions of various courts by subjecting and uniformity the binding precedents by superior courts, and other similar consid- them to difference The us is not in our estimation of the rele- erations. between validity vance of this kind. We may well agree on their of or factors importance. Moore, are But if for they they are follows it valid, that confront my of first-order arguments which any reasons. to refuses He that show a special they are reasons of that function and structure, is, 3 4 exclusionary reasons. 30 CONCEPT OF See LEGAL SYSTEM J. passim (2d ed. 1980). 33. RAZ, THE A particularly clear in Moore's 34. Moore, supra note 4, at 873-74. I This is observations. arguments are meant to show that some reasons are exclusionary (that is, advanced numerous which the rules, of practical reasoning, the role of about decisions, authorities, etc., the arguments structure reasons and arguments relating to the interrelations between the reasoning, for having in such the promises, rules, authorities, and the reasons which these or decisions, of provide). Instead con- of fronting he is content with posing rhetorical questions: "R counted as a these any arguments, action reason the rule was passed, and it still counts as a good for after the rule is good reason before how then morality in place; could be as by R to forbid actors motivated Id. Of course, did they A?" not equate what one has reason not to do with one one is forbidden to do, but even should what when a rhetorical properly formulated not question refute does arguments. by blinds to the possible significance of Moore reasons himself referring to In part, exclusionary as reasons continuously them motivated to certain ways. This, be in in way true, can be while a Discourse reasons Exclusionary reasons for actions. address of motives is most misleading. people's
23 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 62:1153 1174 THE ALLEGED E. COMPLY TO INABILITY WITH REASONS EXCLUSIONARY these After technicalities to a is it turn relief to the grand of arena we I think psychological can presuppositions of practical the reasoning. considering avoid two general doctrines Moore no relies upon. There is reasons doubt that belief in We often causes us to act. say, are we and he did it often he believed that it would please his right, that because mother, or serve a good cause, that would it was that duty or under he a so to etc. Moore I do act, Unlike as a very not regard this significant point. is not a significant least it At question. Rather, any answer to it question how to poses these causal statements. In what the understand do resemble other ways they such as causal statements, "the broke stone window," or the "the explosion?" heat caused the I not think, how- do ever, concerned are anything that we with depends this. on suspects, As am not a believer in "ought implies can," I Moore half and for the reasons he only not entirely agree, indicates." I however, if is impossible to comply that it to act reasons, with reasons for with or not reasons reasons, to it is act for then suppose that there absurd to are such we do touch on a central problem in philosophy. Here reasons. philosophy, moral Kant's for example, is a much more victim important of Moore's criticism. thought that action Kant an moral value is of only undertaken it if for is the out is, right reason, of that respect for the moral right and is If law. Moore second-order reasons cannot be com- according to with, plied then is merit. moral action Kant no of it But is surprising that anyone the possibility should doubt complying with of All reasons. requires is action for the specified rea- that such compliance (in sons, or exclusionary reasons) the case of specified rea- on not acting sons. Since we act reasons, and since do for true for many is that it there are intentional specific reasons for which they were actions some and other reasons for which they were taken taken, it is entirely pos- not 36 reasons. second-order with comply to sible home at to emotions (revenge, when referring Reasons action may, ambition). for envy, but need associated with emotions. It is a not, odd to talk of my belief that Kiefer is a challenging be little as my motive for going to an exhibition of his work, or of my appointment to meet a artist at student 11 as my for hurrying a.m. motive the to University. back eg., J. RAZ, 35. See, THE OF FREEDOM, supra note MORALITY (on moral dilemmas). 15 not It important here that we regularly act for reasons. It is is simply something that 36. happens as a fluke once in a while.
24 1989] 1175 FACING UP Moore understands requiring objection his as It higher a standard. possibility the but the existence of con- only requires of not compliance, 3 7 over trol or not. whether complies one on Moore rests his two case claims. by encompassed are Both the statement "we cannot choose the '38 reasons act." on which we First, are "[r]easons that says he not among 39 the possible objects of our willing.", Second, "we cannot make some- motive our be thing the for reason same that manufacture cannot we a ' and cancer." here Moore is talking causal relation between solar flares "subjective he about what calls beliefs reasons" these are our the exist- in of reasons. ence is statement first So the cannot make need, not that we the justice, of danger, be or not be a reason for action. or or avoidance cannot. course Of we they are Either are or they not that but not, is Moore's point. we that states He cannot what reasons. choose The sec- choose to once we have a belief we cannot that to ond statement adds this the it make cause of our action. main the In I with both claims, tend to agree they how bear but do on the case for or exclusionary reasons? against The statements are to meant reasons show that second-order with. be cannot complied The it for assumes argument fails cannot choose that what you cannot you But do. from that one cannot the fact one's it does not choose beliefs one follow As we saw, however, this would not sat- cannot that believe. Moore. isfy objection is that His not second- comply cannot we with reasons order have control no but we that we over whether comply or sometimes we do not, but it is not up to us Sometimes we not. do, or whether Since we cannot not we do. believe, nor can choose what to our choose we beliefs what not to will up cause, it is us whether we com- second-order with ply and there is reasons or not, something odd about that. this I fear objection that the fails. It misunderstands nature of and therefore concludes choice we cannot choose that what we cannot control. Whatever true else it seems of is choice include me to the to following two ideas. First, to is to be choose to do, etc., etc. do, to set an expression Second, one's will. One's will is determined to choice is of chosen This is do the act. there is little vague, very and do I can to it If we explain here. metaphor of contrast use the the inter- between the nal the external, and that one can say choosing by one's that indicates 37. his rejection the weak sense See of Moore, note 4, "can." of supra at 875-76. Id. 879. 38. at 39. Id. 40. Id.
25 1176 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA all that internally required for the action has happened. That is will is meant by that one is set to act. If one does not then act, what I saying not failure the in is the self. internal, not in One's the limbs may have 4 failed one, or have the may luck frustrated " or the like. attempt, a cannot choose to believe in normally propo- why explains This one to want to eat, nor choose to sition, eating, etc. I cannot nor choose like believe because choose to not is I what beyond believe my but control, 4 2 it because but not subject is my will to my intellect intellect. to My I in by its own methods. believe check the evidence, what controls I carefully, look for more, and so on. That my intellect is not evaluate it my to does not subject will it show under control. is that not the On contrary, is properly under it shows that it when the is control. my It my intellect that I lose control over myself. will interferes with Notice expression (he) chose to believe him" implies some bad "I that the faith, rationalization, self-deception, or some other cognitive defect. choose to want something, or I like something or some- cannot to even body, and choosing liking though the are will. of manifestations that choosing means that one The set to do it. It does not reason is is that normally did it, for external factors may have foiled one. entail one With liking there are wanting and external To say that no factors. one is to like or to want is to say that set wants or likes. There is no gap one between being set and the wanting or liking. Hence, there is no room the the idea choosing. Its function is to mark the internal determina- for of the tion the will, of but the of internal determination to want or to will wanting or liking. Again, the inability to choose to like or to is that want not contingent empirical like is a is logical It inability. a or conceptual does not mark a failure of self-control. It simply indicates one. dif- It a ference mode of in the its exercise. saying, of course, that we always not or want what we I am like like or want. Our self-control want not complete. Sometimes when to is are internally set to want something (that not when we do not want we is, but we either want to want it or realise that it), ought to want it, we we can about training ourselves to want it, or manipulating our desires to set make us But the fact that want it. is control our incomplete does not we have no control. The only issue we are concerned with is mean that the rebut to objection have control over we no that comply whether we am leaving aside choices I 41. take place some time before which action. the This is far too sweeping since, within certain limits, what I believe is subject to my will. 42. cognitive for belief or disbelief The reasons often indeterminate. In these cases are reasons I the why not normally choose to believe are do not those why I do explain choose which to want something.
26 1177 FACING UP 1989] we not, but do sometimes Sometimes do, we reasons. with second-order Compliance, according to this do. or to not we us whether not is it up us. This I hope happens to do. It we merely something not objection, is objection rests on Moore's first least the in at far as so refuted have to Can beliefs and desires. our that cannot we choose proposition, namely what control over Given that we have on rest the it second proposition? beliefs will choose can of our we which will, we what and believe we if is required compliance that than less nothing for actions, our cause to us. happens merely something that second-order reasons is not with what control Our of choose control. can we but Again, cannot we For while I cannot our control over our beliefs. causes is actions our do cause I ought this what is to that all things considered, my belief make factors belief will, barring irrational the it that this, is case the to do me 3 4 My control over what act. so cause me to obstacles, external and the I take to justify my control over what therefore, is, act to me causes the what should I It is do. all is that considered, things that, conclusion of various the force me to appreciate leads which process of reasoning determine my should of them which and conclude to considerations, the justifies brother my to duty my believe that to coming By action. I to his request, I should accede said done and is all that when conclusion "make" that belief the cause of my action. So the objection which is statements two Moore's on based fails. men- I feel time I that uneasy every concluding, I have to admit In of the sources the are what I am really after I suppose "control." tion own self. to passivity with regard our and activity between distinction unlike side, and are obses- active desires to belong the Our and thoughts of those our pas- and of various forms irrationality, sions, compulsions, this distinction, know how to explain I do not sions which possess us. suspect are reasons Second-order have importance. doubt no I of its but passive and impacted in which we are is a matter them with conformity if upon, rather active. than in those for we are active that thinking have given my I reasons The crucial (partial) control. under our are matters, that they generally is in different manifested control was that recognition the point there we reach for the core, for when matters. In particular, different in ways insight familiar Kantian intellect, the will the and the control of our which indicating is practical question is resolved by reasons suggesting not every 43. I am that not those But do are not so determined. practical questions action. the right Many or best the concern us here.
27 1178 REVIEW [Vol. 62:1153 LAW CALIFORNIA SOUTHERN Control applies: submission to the laws of rationality rather than in is in shackles. of any the absence REASONS GENERALISING F. EXCLUSIONARY seen as a special reasons can be exclusionary suggests Perry that calls weighting he which reasons, wider case of second-order of a range reasons to give first-order reasons. a weight which dif- They are reasons the the agent would otherwise judge them to possess." fers from one to zero weight assign are to reasons reasons exclusionary "Subjective" 45 a of notion the I do not use earlier, saw As reasons. we first-order "subjective" exclusionary reason. This does not mean that Perry's reasons notion a useful one. Bringing Perry's notion of is not weighting for action are facts rather that reasons argument earlier into line with my about them, I take his notion of a weighting reason to mean than beliefs Certain the are reasons for assigning other facts, which following: facts they would other- a greater or lesser weight than for reasons are action, merit. wise Reasons and Norms I considered Practical role of weight- In the 4 6 friend's husband a the fact example, For that affecting considerations. to visit her reason extra have weight to the I children are away gives and hospital. Perry's reasons are different. They do not affect in reweighting require agents reasons. They merely of weight first-order "true" the the weight the they of particular weight, regardless a to had if as act they may be useful in discussing As Perry notes, the notion have. really presumptions. or grounds concerns the for, suggestion a which further Perry makes of applicability of, exclusionary reasons and presumably of the conditions reweighting reasons. He calls them epistemic limitations. Perry's all amounts justify the following: Sometimes the grounds which point to epistemic state. reasons have to do with the agent's acting on not certain he certain have reason to exclude example, reasons from his For may of let say, defer to the opinion (and, another) only if he considerations us uncertain about the import is those considerations. But he has no of reason exclude any reason if he is clear in his own mind what their to Perry, note 44. 2, at 932. supra Id. 45. J. RAZ, THE MORALITY 46. FREEDOM, supra note 15,,at 35. OF
28 1179 FACING UP 19891 is balance of reasons. Perry calls such reasons "epistemi- on impact the a7 bounded" remarks make clear, they are a spe- cally As reasons. these cies of all of exclusionary (and weighting) reasons. Perry mistakenly them regards reason. a distinct as type of they recognises, half as But, he really very similar to various species of exclusionary are not, they are discuss. I importantly, they are rather reasons which specifically Most in which show that grounded considerations reasons exclusionary like is less the than that of the alleged author- agent's own judgment reliable tend to regard Perry's epistemically-bounded ity. as just I myself reasons with agent's uncertainty about the impact of various such reasons, the the ground thinking that the authority's being considerations merely for reliable. more is judgment epistemically-bounded his Perry's reasons for thinking that reason ones is that they do not fulfill the function that I are not exclusionary reasons. exclusionary if true shows that I was wrong assigned to This of function about the exclusionary reasons. some lend any It does not view that epistemically-bounded reasons are not exclu- to credence the mistake' was to have claimed that valid mandatory sionary. My rules, authoritative can be applied independently of the reasons including ones, But Perry's reasons can be applied for them. epistemically-bounded background of their validity. All he has independently reasons the for validity of be established independently their such shown is that cannot on this in doubt. Later never we But considerations. background was Moore argues that shall of what I take to be legally binding see that none can applied without regard to their background exclusionary reasons be justification. however, Perry, does claim not that. LEGITIMATE ON II. AUTHORITY A. ITS NORMAL JUSTIFICATION claimed (under the title "The Normal Justification Thesis") I have normal the primary argument for the justification of authority that and that conforming its directives is more likely to lead one to must to show 49 it acting independently of than would. reason with conform better that this leaves out of account considerations of the condi- Perry thinks an operation for of authoritative institutions." But the tions efficient supra 47. at 942. note Perry, 2, at 943. See 48. id. RAz, THE MORALITY OF 49. supra note 15, at 53-57. J. FREEDOM, Perry, supra note 2, at 897, 939-40. 50.
29 1180 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 62:1153 1 thesis normal justification include enough to abstract is such factors." The is efficient simple. reason An perform to institution may be able a in makes way which directives its compliance with closer to reason than either compliance institution less with a efficient or acting independently. also Morigiwa finds the normal justification thesis But narrow. too I this is due, think, in to three at least part, of misunderstandings my view. Perry, First, more than even my view he thinks that in superior 52 is knowledge the possible justification only he Second, of authority. discussion mistakenly identifies my authority and of law of terms in of action with moral for reasons reasons, term is when this con- narrowly Reasons strued. humblest from range the from the to the sublime, need to have some air the fresh to desirability of a having rich fulfilling and with one's life, from concern for hairdo victims to concern the of mass starvation. Third, Morigiwa identifies acting for a action reason with following conscious In rational deliberation. people my inter- view, can nalise reasons and automatically act them on Once and instinctively. understood in these ways, my authority analysis of and law to be is seen free some the defects from of he which to objects. where my One point of of authority account justification was at fault in not is enough emphasizing value, the some people some occa- to on not sions, decide having of to costs themselves. for The decision in of labor, energy, mental time, considerable. and anxiety are often Being them spare to able is for, often worth paying reduced even through suc- cess in with conforming reason. I did, of of the account course, take this factor. I made reverse of clear compliance the normal that with not justification sufficient is for the legitimacy of authority. One needs an also there are to show that no defeating I mentioned contrary reasons. the in to satisfy particular need calls Condition Green "The what that is, of Autonomy," matter the that (over which someone said is have authority) is not to one which it is on important more should decide for that people that themselves they than 3 should decide correctly. This take is meant to "the of account intrinsic 5 4 desirability their of people conducting their own lights." by life own are discussed They briefly 51. RAZ, in MORALITY OF FREEDOM, J. THE note 15, at supra 51- 52. 52. Cf. Rationality, and Morigiwa, Authority, Raz the Practice of Joseph Law: and S. Law, 62 REV. CAL. L. 897, 903-05 (1989). 53. Green, Law, and Consent, Legitimacy 62 CAL. L. REV. 795, 810 (1989). S. J. RAz, THE MORALITY 54. FREEDOM, OF note supra 15, at 57.
30 1989] 1181 FACING UP case for "The of validity the to a claim authority include must justifica- 5 sufficient considerations tory to counter-reasons."" such outweigh If both normal justification the thesis condition the and of autonomy are 5 6 fulfilled then, in general, authority alleged the legitimate. is Green these agrees that form necessary conditions legitimacy the for an of But authority. that are not sufficient thinks he they they become and sufficient subject the authority if only the of to be to consented subject it. I will consider of the role below. consent me first defend Let my claim the that two conditions specified are, sufficient. normally, He argues against this conclusion an through analogy: Suppose Carol is excellent investment an counselor that and conform- ity to her advice is certain to optimal. be further Suppose there that is David in value intrinsic no his financial managing own Does affairs. show that has Carol that authority legitimate to act No. David? for Although it does show such she if were given authority she would be in justified it, it having shows that also David would in justified be giving Why her. we it to should government that think is a in a differ- 7 position? ent Authority to act someone is for authority in different a slightly sense It of the term. means to in a certain being permitted act someone way by 5 with power normative grant to such permissions or authorizations. I will disregard that aspect example of Green's and treat discussion as it a of over authority by assuming people, that Carol tells David do, what to she does rather that than bound by for him. it he Is advice? her agree I Green with that the is government in the same position. We can further agree that under the conditions described Carol no has to authority manage David's affairs. financial example the has But estab- that lished two conditions the are It met? that asserted the first condition satisfied. is the second? All about How is that "there is are we told no 59 value intrinsic David managing in his own affairs." financial But, as Green says, that not fact "does there that show intrinsic no is value in 6 for deciding himself whether or do not to so." Presumably Green is alleging my condition that "that it important more is that David should Id. 55. 56. The saying for reason not normal that the justification thesis and the condition auton- of omy together a sufficient constitute condition for of the legitimacy an is there authority that may be reasons other against holding it legitimate. this In respect the passage cited by 53, supra Green, note is imprecise. 808-09, at at 811. 57. Id. 58. J. See RAz, AUTHORITY THE OF LAW, supra note 32, at 28-33. 59. supra note 53, at 811. See Green, 60. Id.
31 1182 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA for himself that he should decide correctly" means only that decide than more important he should decide for himself whether to buy it is that sell them, not that it is important that he should decide or stocks to but handle his financial affairs, for example, by reading for to himself how the financial daily advice getting papers, putting her from Carol, or in 61 charge. This meaning, not my was with that the agree him and I condi- must bear the wider of the two interpretations. Here tion of autonomy is I to ward off such misunderstandings tried The Morality of the way in Freedom: chapter is meant as a normative-explanatory account of Since this notion authority, core it can be extended to explain reference to the of various specific But such extensions are neither authority in contexts. For it ... [h]ow does automatic. help to mechanical nor example someone being an authority?... Consider as discourse understand of cases where a person ... is said to be an authority on a an example as is 'John matter, an authority on Chinese cooking' or certain in 'Ruth an the stock authority is on nor Neither exchange.' John Ruth over me, even though my Chinese cooking has my finan- authority and affairs prosper if I follow their advice will than trust my cial rather judgment. own They do not ... authority over me because the right way to have treat advice depends on my goals... Here the normal justifica- their thesis establishes credentials of John and Ruth as authorities tion the fields. But or not there is a complete justification for in their whether to regard or instructions as guides advice my conduct in to me their I regard a binding authoritative directive depends on my other the way such In while talking of a person as being an authority, goals. cases 2 6 one. over authority in as him of talking from refrains one the makes clear, where As autonomy condition is not passage this we do not talk of people as being in authority over us. This remains met case we if the decide to be guided by authorities rather than to fol- even our own on the merits of each case. It is true enough that judgment low as general over us, such authority governments may have, with bodies the exception to this rule. Where our decision not to be guided by are own the on the merit of our case is a condition of governmental judgment condition, over accord with the autonomy in then we speak authority us, governmental authority when that condition (and all of is met. others) 61. id. See supra J. THE MORALITY 62. FREEDOM, RAz, note 15, at 64. OF
32 1183 UP FACING 1989] the meeting way for be a may of consent granting the Sometimes in alleg- right is Green that suggests point This autonomy. of condition of condition a as consent of importance the underplayed I that ing for ground positive as the on consent concentrated have I authority. may which with arguments concerned I particularly was and authority, authority the have sometimes, least at authorities, political that show in role modest a also play can consent But possess. to claim they which over matters are There authority. limited to a an objection removing oneself. for decide than to correctly decide to important more is it which all overrides oneself for deciding of importance the matters, other In is an it where areas are there between in But considerations. other consent matters such In himself. for to decide person a for good optional be never will of argument type this But authority. establish to serves itself, to claims state modern the that authority the establish to enough justifi- normal the of role the with dispense it will admits, Green as nor, without authority, for reason main the establishing of way the as cation be binding. not would consent which AUTHORITY AND RULES INDICATOR B. but authority about say I that much with agrees Regan Professor my than of authority notion substantial more to a aspire that I thinks he which account, own his advances he this show To warrants. account Regan's are rules Indicator of authority. account rule the indicator calls 6 3 view The of thumb. as rules known colloquially are of what elucidation is there if only and if authority has person a that is favours Regan that the to thumb of rule justified a knowledge) of state current the (given on grounds be justified can a rule Such obeyed. be should he that effect infor- incomplete of problems the avoid or time save will it following that bias. of or mation, people for some justification provide can of thumb rules that I agree As Regan people. some over authority limited having organizations or the meets available, it is where thumb justification, of rule the out, points the of account my form that of authority nature the about theses three shows there provided analysis The authority. legitimate of concept Also, authority. for justification provide can thumb of that rules clearly rules" his "indicator as distinguishing by Regan mentioned features the that all I think 63. infallible are thumb of some rules that except of thumb, to rules apply fact in do thumb of from rules Regan, 9. by See divisible is digits its sum of the by 9 if is divisible number a that rule the (e.g., (1989). 1004 995, Rev. L. Cal. S. 62 Freedom, of Morality Raz's on Reflections in Value: Authority out turn may it sense that in the are revisable thumb of rules infallible that even however, Notice, note 70. infra See solutions. such to guides as follow to rules alternative better are there that
33 1184 SOUTHERN LAW REVIEW [Vol.62:1153 CALIFORNIA Regan notes, argument of Chapter 4 of The Morality of Freedom as the concerning authority state conforms of the the to many in respects his 4 in explained as view the present and in his article The Halo.' Law's main theoretical difference between us concerns under- the best way to the stand role authority of in initiating and maintaining coordinative I will practices. consider this which issue, in seems Regan to join forces later. with Green, to clarify some First need we conceptual minor mis- understandings which create the impression that Regan disagree and I when, once the confusions are out of the way, we do not. My of discussion authority in The Morality of falls Freedom into two 5 parts. Chapter Three provides of the concept of an account practical It authority. applies authority, divine to parental author- authority, the football ity of coaches, teachers, and cases all other authority, of or claimed in authority, societies our well as in as Chapter others. Four utilizes that account offer to some arguments the concerning authority of modern the Some state. of Regan's gentle dissatisfaction my with treat- ment the subject of results from to take his failure this notice of is It fact. essential of explanation the an for concept to authority of recognise that people not who do accept the agent-neutral consequentialist view which Regan favours the share do same concept, and it cogently, use even if they mistaken may hold views as to who has legitimate authority and who does The account of the not. concept may be committed not to, though it compatible be should with, agent-neutral consequentialism. The wavering that he chides this me for in regard, well as as that con- the question cerning whether puts a mistake clear a directive outside the of jurisdiction the wavering at authority, no is putting was all. I forward an account explains which concept a by people used holding different views issues. on these make To good account it a to I recognise had that, 6 6 and avoid any explanation that takes on sides these issues. to In other words, succeed, account must an such frame- provide the arguments work for about justification the authority, of its duties, and the duties subject of the it. towards But it should leave the actual filling- of the in arguments to further, substantial more stages argument. the in In my case, since the is concerned book with the authority of states only, Law's Regan, 64. Halo, in PHILOSOPHY AND LAW Coleman and 15 (J. eds. Paul E.F. 1987). Three, 65. if critical and the preliminary analysis of Chapter included. Two is As 66. to the question whether my view is a one consequentialist not or position the took in I the book was successive that refinements of the notion of consequentialism almost have left bereft of all content and made an unrewarding tool of analysis it clarification. or The that Regan con- fact gratulates me being for a consequentialist though I rightly even reject theses most supported by consequentialists only strengthens this belief.
34 1185 1989] FACING UP comes the with filling-in the Four. of argument Chapter Regan's com- that plaint for the I do really argue not shows thesis justification normal similar a full-fledged No misunderstanding. called is argument moral for required, at this stage. What is to and what I attempted provide, an is features authority various hang together account of how shows which (the service free conception), how they are they objections, from and how important most the capture concept of features the (this it as know we what pointing to task every reader necessarily relies last on largely 6 7 knows). For Regan's myself, I find neglect between distinction the of an of explanation and a notion of the authority complete moral argument the about conditions has legitimate under anyone which puz- authority zling. Is be his meant to account concept? the an I account of think it because it takes a partisan consequentialist view, hardly qualifies as such disqualifies which it as concept an account of the by used of authority as well as by consequentialists. As I already Kantians and others, acknowledged, Regan's account when fleshed duly (pre- provides out a 68 sumptively condition the for sufficient ) of legitimacy author- practical that there cannot be a justification of ity. on any Regan argues authority because whatever other grounds (1) play may role authorities the gen- in eration to coordination of solutions prisoners' problems (or dilemmas, they etc.) in not, function doing do so, their suc- authorities as (though the on depend may cess other that occasions they fact on are or for other authorities); purposes non-instrumental my (2) arguments for the justifi- flawed. of cation authority are Before arguments, I consider these in let me note that one respect Regan his own account. is unjust to it that not justify He says does talk- obedience to ing of authority, legitimacy nor of the of we authority since rules not do obey do we talk of thumb, nor legitimate. them of as But these observations, true, not support though do is his conclusion. It not of thumb rule the to which obeyed or to is be held It is the be legitimate. rule authority. of The thumb that the a legitimate is X rule is authority matters in such or that there as... to obey X ... is a duty or that Xs ... directives binding are the we follow obey If rule, we the authority, hold and be legitimate. If the it to rule thumb to be followed, of is we to obey ought it the and authority, legitimate. is 67. of the explanation On the strategy see J. RAz, THE I used MORALrrY FREEDOM, OF supra note at 15, 165. 63, is, it 68. sufficient, other things being equal. That is
35 1186 62:1153 LAW REVIEW [Vol. CALIFORNIA SOUTHERN is just well that Regan has, I believe, slipped on this point. If It as fails here, it cannot explain why we regard justified author- his account if ity or obligations, as as binding, imposing legitimate, as or then would it not be account an authority. cavalier Regan's of that we need comment regard not as as legitimate authorities or the imposing obligations misses point. have We choice in matter. It is no the of justified of the essence are that and they they impose obligations. To authorities that legitimate, 6 9 of fail to understand the concept to authority. that fail to is see 7 1 authority of account thumb of rule the reject I that believes Regan just explained, I do, and I do As I do reject it as an account I have not. concept of of the I reason no and authority, see it to necessary as regard a kernel legitimacy But it has the authority. of an the condition for of presumptively sufficient condition for the legitimacy of some account of a for reasons to me a negative attitude to authorities. Regan's attributing his are, however, account mistaken. own his identifies He account with 71 of authority which I criticized. Here the again I recognition conception Regan think making a mistake which does an injustice to his own that is 2 7 for his, to my mind mistaken, accounts that the rule of view. It belief thumb explain the account cannot authorities coordinating of role in of other which are, let me repeat, among Rules behaviour. thumb, reasons, can justify authorities on the ground that things, exclusionary are useful in coordinating they In other words, behaviour. appropriate in best rule of thumb is to do what X tells me to do, circumstances my his because most likely to secure desirable directives following seems a such is, according to Regan, rule rule of course, coordination. Of a its adoption thumb only if reference to is justified by the incompleteness The argued in 69. Chapter point is MORALITY THE Two of OF FREEDOM. statement is not entirely accurate. Strictly speaking Regan 70. that I reject the This thinks rule of authority. I indicator account rules believe are not indicator thumb of that believe I rules. of thumb are exclusionary reasons. Indicator rules are not. They that rules for not consid- rules are certain As explained in Section I.B. above reasons. reasons are not exclusionary reasons, ering such they are not part of an explanation and of authority. also J. RAZ, THE MORALITY See FREE- OF note 15, at 23-35, where I considered and criticized Hart's explanation of authority in DOM, supra reasons RAz, not considering certain reasons; J. of PRACTICAL NORMS AND REASON terms for 2, 59-62, note I argued that rules supra at thumb exclusionary reasons of provide for action. For this I discuss rules of thumb directly, rather than Regan's "indicator rules." I think that reason the all views rules of thumb which I attribute to him are views which he holds. concerning This criticism 71. in Two of THE is Chapter found FREEDOM. Regan is unsure MORALITY OF this identification. See Regan, supra note 63, of 1019 n.57. at 72. it reinforces my view that rules of thumb Incidentally, not to be by analysed as indica. are tor rules.
36 1989] FACING UP one's of to the need information or bias or save time. to avoid to Some- times such factors justification. will in the figure is following The (a of) example: sketch an what to have I When decide I do not have to do on matters time the or the course information decide what to and has action of salience would form the coordination the solution to always I problem. If follow X's am likely to do what everybody else will do much more directives I than my judgement in those trust I if especially circumstances, as if, is will do the same. likely, people other justifying Sometimes rules rules authority, that is, person that one should are justified obey another, such by but by the not factors desire to the avoid psychological for of anxiety oneself deciding on occasion, each or to save mental energy involved. the similar But such and factors added should be restrictive list to over Regan's of grounds the pres- the which qualifies a rule as a rule of thumb. My point is simply that ence of all these combine with reasons reasons may coordination, for achieving can with as combine just they reasons for avoiding toxic the and toys justify authority. I am not like, of course, that all author- to suggesting, rules are based on reasons of which are rules ity-legimating coordination thumb. Only of some are. So that observations these do solve the not difficulty main is dealing with. The that Regan what more question is need about of the be said role coordination. authority in securing C. AUTHORITY AND COORDINATION We to consider now are ready Regan's main argument. Regan's simple point is agrees and powerful. He authoritative directives can that play a crucial role in By, let coordination. securing passing a law us say, requiring certain of action, a course one of possible which is several solu- a to coordination tions many-person the problem, legislature makes that salient one, and solution the its adoption the secures by population, is too eager which only any solution likely to adopt adopted by be to everyone. But, insists it Regan, the salience of the is solution, than rather fact that the made was legally it obligatory, reason people's which is for following serves its role it. The law But it salience. creating in does not an authoritative function as which to be recognised directive has as itself a reason The need to for action. secure can never justify coordination the law regarding as a reason for action. All it can ever be, where itself 73 concerned, is coordination cause of the is salience. Some elements 73. argument of in a much the were form anticipated and cruder endorsed by The in 12 of THa AUTHORITY OF me Chapter following discussion indicates also where I LAW.
37 1188 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA think that argument will strike most people as counter- I Regan's one intuitive They will rightly observe that the law simple for reason. of action requires with salience precisely because it the endows course it is recognised by population. authoritative as the Regan is aware that it. is and tries to get around response I think this like something likely One cannot argue that it is legislature's authority on other that he fails. statute this matters enables action the make it to (illegitimately) requires its the people is exceeding that legitimate If salient. believed authority this statute, they would powers likely to resent it, and in passing be not follow it. It would acquire, to you like, negative sali- prefer would if is at least a likely outcome, and this would ence. enough to dis- This be the from trying to solve coordination problems in this courage authority fact is, course, that the prescribed conduct becomes the way. The of people within that the authority was because its salient solution assume the statute, rights in passing why each is expects that and one the others it. Still, it is not clear whether there is here an answer to Regan's to obey 74 argument. example, my position. I am faced with a coordination Consider, for in discover of other people's belief because the legitimacy I that problem. legislature, a particular course of action, which of in fact a solution the is the problem, will be followed. So coordination follow it just because to I that. I do not accept the legitimacy of the authority, nor need I do of so. I simply on a as to how rely prediction will other behave. people The fact prediction that is the based their of belief knowledge my on in the of the legitimacy is neither here nor there. It of the authority legislature does the legislature has authority over me, that is, that I not show that do the statute prescribes because it as duly enacted, rather to ought was it is than to be followed by others. because likely line argument may suggest that I am free-riding, in a rather This of is I cognitive free-rider. In fact, everyone a in my posi- way. am special can reason similarly. But if all, tion many, did, and if this became and or known, the authority will lose then ability to secure coordi- generally its If nation. views were generally shared, and were known to be shared, my no would be able to reason as I now do, for the premise of my argu- one would then false. In other words, my beliefs are collectively self- ment be the argument the to take account of all there relevant considerations. It is also intended think fails at least a partial reply to the related argument advanced with great subtlety by Professor L. Green as previous Green, See in Authority and Convention, 35 PHIL. Q. 329 (1985); Green, Law, publications. LEGAL and Good, 3 OXFORD J. Common STUD. 299 (1983). Co-ordination the My following observations 74. capture that way may Regan intended the own of his rebuttal counter-argument to be understood, this I am not sure of that. but
38 1189 FACING UP 1989] 7 It is arguable that to may my belief. count against defeating. This " self-defeating is or is collectively evaluative belief show a normative that not it. I do absurdum argument against ad of to provide a sort reductio its of any further, for whatever argument merits this pursue to wish line what is required to show that authority can rest on the it falls short of Two need show the inadequacy of the to secure coordination. reasons the the the legitimacy of shows best argument argument. First, at new schemes of coordination. At the authority the to set up beginning that coordination because it gives is hope binding may one statute, say, after a while the statute ceases to matter. will a coordina- emerge. But If emerged, one ought to conform for that reason, regard- tive practice then the of still in force. If a coordinative practice less statute whether is to the then one has no reason to follow reason failed for some emerge, that now likely that it simply failed, and will it lost its it statute, for be 7 6 emergence of a coordinative practice. chance The to motivate the sec- the argument fails to establish the legitimacy of the ond way previous ordinary it that its directive is an establishes authority is that merely a pre-emptive reason. But establish that it is It fails to action. for reason pre-emptive reasons. This directives is the back- authoritative are point Green's argument alluded to above. Regan, who agrees that bone of with the point. are would agree pre-emptive, directives authoritative arguments such as Green's and briefly the past that in I have written to apply as defined in game theory, Regan's coordination only problems author- claim that sense of the term. My narrow an but that is artificially not is meant to help in securing coordination justified their be ities can by 77 sense of the term. refer Securing to means this technical coordination It getting people to act in ways which are sensitive to just that. means can then be act are likely, to so that benefits or are others guided, the way without less if people act likely coordinating their are which expected is, without basing their own actions on a view as to how efforts, that that people to act. Coordination presupposes or are likely others should trying they are to secure goals one Rather, fail another. to trying not are by But or perhaps just goals that all should have. shared which are all, presuppose participant every not will improve his coordination does that coordinating. can coordinate in attempting to rescue by position People D. PARFIT, PERSONS AND REASONS (1984), on 75. notion of beliefs which are collec- See the self-defeating. tively OF Chapter 12 AUTHORITY THE in of was the adopted I view speaking, 76. broadly This, argument needs refining to account for LAW. probable development in varying The different circumstances. I admit that at times I Though in ways which encourage that mistake. 77. wrote
39 9SOUTHERN 1190 LAW REVIEW [Vol. 62:1153 CALIFORNIA victims of natural disaster, though they do so at a great cost to the a prospect that practices will emerge auto- themselves. The coordinative held out game theory, is less than compelling given which matically, is by solve secure is not to same as the need to coordination that the need the coordination problems. multi-person recurring game-theoretical Let on the me comment briefly can establish reasons which the arise this wider sense. They in from social coordination desirability of without a coordinated effort, some good, two can sources. First, which be at an acceptable cost, will secured lost. Second, some- principle in be good need not be lost. It can be secured through the contribu- times the of a number of people, but it would be unjust to impose the tion smaller of securing good on those people rather than on a larger full burden the I point suggest to some that may am confusing coordi- This group. last with the free rider problem in the provision of public nation problems remember not I do But have in mind only what game theory goods. that only problems. I have in mind do the provision coordination dubs Nor goods. Coordination of public necessary to may be protection the secure endangered species, or of of natural wilderness. Their protection an a not be thought of as a good to anyone. It may be need good in itself. a But coordinated effort, the the or for contribution it, required arises out either mentioned. Without the coordination, I the the reasons two of be achieved, or if achieved it goal be secured through some will not will more their fair share of than burden, while carrying individuals the nothing or less than they should, or others stand in the contribute even of goal by their behaviour, which may positively increase the way the the species or to the environment. to endangered danger ways of defining coordination problems in The the- common game can adapted to include cases be which people have non-self-inter- ory in reasons for securing goals requiring coordination with others. But ested cannot they extended to encompass another way in which our ordi- be notion of coordination problem differs from the game-theoretical nary a game-theoretical is, is essentially subjective. That The for a one. notion that problem it is not enough exists people's reasons indi- coordination to that there are several courses of action each of which will be the best cate adopted all if others. A by. problem exists coordination people only if (1) aware of the structure generally their reasons; (2) aware of the are of of action which, courses generally followed, will lead to the desired if result; aware that the same is (3) of other people's reasons; and (4) true
40 1191 FACING 1989] UP it is known that all four conditions (that is, the pre- aware that generally this one) met. According to the sense of "coordina- three vious and are coordination common whenever the in tion" problems discourse, exist they are they would do best if that people such to apply which reasons The subjective conditions (1) to (4) are not in a coordinated act way. but commonly, part of its solution. That is, the of the problem, part get problem is to people are they confronting that realise to a coordina- this is achieved, tion get them to realise that it is problem and, once to there is a coordination problem, and that it is common knowledge that it that common knowledge. common knowledge is Needless the coordination to fact say, that not only problems arise their own preferences can coordinating with when people best satisfy by they can only others, the morally best outcome by but also when secure increases considerably the possibility that they others, with coordinating realise that will face a coordination problem, and even if they fail to they will whether this understanding is common. But quite do, they doubt consideration between is a big gap this the existence of a apart there from the common (objective) sense and the existence in coordination problem coordination problem in the game-theoretical (subjective) sense. of a subjective the are met the most difficult part of solving Once conditions is over. on many occasions once the subjective con- the problem Indeed, no are On many occasions there is only ditions problem met remains. which followed, secure, if generally action the desired one course of will if etc., will be followed it the irrationality, Barring result. forgetfulness, met. To salvage a problem out subjective its definition, conditions are of game further condition includes theory a of coordina- definition a in the is such a problem only if there are several tion problem. There possible that equilibrium points, courses is, different several of each of action, be best if generally followed. The only problem that game which will as identified coordination problem is choosing which course of theory a should follow those conditions. conduct one under of and its attendant understanding Our coordination common that this problem can be real enough, does problems, while recognising problem. as necessary condition of a coordination a The not it regard problems difficult most They have to do are different. finding a way with necessary the conditions, which are subjective to secure of four satisfying hope that it is now plain how authorities can play a coordination. I cru- role securing coordination, and how this role is crucial in estab- cial in the legitimacy of political authorities. lishing
41 1192 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA the limits my knowledge and understanding, and being Knowing of the danger my aware of that affected will judgment by be bias, and my of resolve, I am aware weakness the possibility by of the my performance organization, might be better able to judge when that another person, or are there sufficient reasons for coordination to social con- should I which tribute. may This be person or organization the case if the to is less likely I be and if they have greater expertise than I concerning biased than am goods the and social needs which coordination for needed, be may and 78 the ways In such achieving them. of I should a rule a case adopt to to such a the or body, of regard them as follow instructions person certain specified bounds. The rule will be justified by authorities, within that it fact will lead me to participate in justified coordi- the following behaviour nated more social I if than should reliably try for decide to exist, myself coordination problem the and when I when conditions of a certain course of conduct as should way of participating in a follow a a 7 9 justified coordinative practice. conditions have assuming that I the been for a coordinat- far So all barring (when it is a ing for the existence of the prac- practice, condition my tice) participation, authority exist. I The recognise on authority an is practices. It can (some) me better than I existing coordinative instruct when such practices are can and how I should contribute myself justified 8 " But often I should take a them. step. I should recognise that to further people other in my position and are that if all adopt a coordinative we to follow practice the a directives certain of body certain limits within be able to establish will preserve justified coordinative then all we and otherwise evade our grasp. The reason is that by practices which would that the sharing knowledge to assigned all this we body to power the for decide problems when us coordination objective sense) exist, the (in make generally known its proposed solutions, we make sure and to that subjective the met. are We conditions know met are whenever they that 8 we recognise issues the of its directives. body ' whose authority one is sufficient if that person or body 78. advised by people with such expertise, and tends to It is such follow advice. regard full requires much refinement. The may story the authority's directives as suffi- 79. I to indicate cient that the for coordination, within the specified reasons require certain limits, conduct conclusion. without directive as a necessary condition for such a its This seems to regarding me, of common attitude, the be are cases in which the though there are authority's directives regarded, as conditions. justifiably, necessary perhaps is a further advantage to having 80. an authority. By making the matter public, There such involving other people in it, it can strengthen me and weakness of the will. against 81. is again too simple. I am assuming that the authority is limited to solving coordina- This its problems In the normal case in which it has other tion as well, all we know is that if only. powers directive meant to solve a coordination is be then problem, is likely to (1) there such a problem, (2)
42 1193 FACING UP 1989] coordinative (second-order) justified be can there words, other In as that is, authority, a coordinative as or body person a setting practices prob- coordination is a there when determining authoritatively of capable Such justified. may be practices such it, and do about to and what lem aims their achieve can which thumb, rules of neither are practices But they are rules. indicator nor others, by adoption their of regardless bounds) proper (within authority an of legitimacy the justify which rules us all of They enable thesis. justification the normal with in accordance try to when we might we than better problems coordination to solve whether and problem coordination a is there whether for ourselves judge met. are solution its for conditions subjective the The are met. earlier mentioned objections two the how we see Now a as functions authority the role of coordinative the that shows argument whole the because objection), Green's solving (thus reason preemptive to try if I defeated be will directives authorities, the following of purpose judg- to the authority entrusted matters the in own judgment my follow judg- its that was the authority recognising of point whole The ment. I arguments standard All the than mine. rather trusted be ment should reasons as preemptive directives authoritative regarding for advanced 8 2 apply here. not for action reasons are directives the authoritative Furthermore, is it also when set, but be is to practice coordinative new a when only 83 the popula- First, be existence. in might or at least existence, in already and others people die changing, constantly is directive the to subject tion partici- practices With immigrate. and some emigrate age, of some come for other reasons are there conditions other on depends which in pation so, being stop and minors, of parents become People fluctuations. the fluctuations so. Such being stop and they earners, income they become put in for they practices, coordinative of the stability well threaten may second-order the If conditions. the subjective of the satisfaction question it intact, remains the government of authority the recognising of practice the of satisfaction the secure easier to is It destabilization. such prevents coun- all as authority, of practice the one regarding conditions subjective end, to this efforts educational and publicity much directing by do tries are conditions the (3) subjective and problem, to the solution a to best point to likely is directive the (but problem coordination a solve to on need the not is based if the that directive also We know met. grounds. on other to be justified is likely then it the authority) of the jurisdiction within falls AUTHOR- J. RAZ, THE 38-69; note 15, at supra OF FREEDOM, MORALITY THE J. Cf. RAZ, 82. at 3-27. 32, note supra LAW, OF ITY of Richard Warner. suggestion a on is based following argument 83. The
43 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 62:1153 1194 than to secure satisfaction their regarding many diverse individual coor- dinative practices. Hence, authorities useful are as means a securing of continuity the of coordinative practices the in changing face of popula- tions. Second, by relying on the authoritative directives I am spared the need to for judge if myself the coordinative practice exists (a task at which I no am expert). Furthermore, knowing that others likely are to reason me like makes more it that likely the practice exists. And this is doubly since so it is common knowledge I that and others reason in this way. Two crucial points must mentioned be here. This argument is meant to reinforce my observation in The Morality of Freedom that only facto de a authority can be legitimate a coordinative authority. Natu- rally, loss the of the obedience of the population undermines the whole argument and the denies authority its legitimacy. Second, it may be well in that cases where it is clear the that hoped for coordinative practice failed materialize to after time a the directive intended to secure and maintain the practice should not regarded be as binding. is It arguable that though authorities should repeal such directives, they cannot be trusted to do so. Therefore, if it to is clear the all that hoped for practice failed to come existence, into continued the of existence directive the can- reliably not be used the in argument made in the preceding paragraph. D. THE PREEMPTIVE FORCE OF AUTHORITATIVE INSTRUCTIONS My preemption thesis that states which directives fall within the bounds authority's of an jurisdiction should replace rather than be added to the balance reasons of on which authority the had power to pro- nounce. previous The discussion indirectly illustrates and adds support the to thesis. I argued it explicitly for Chapter in 3 Morality The of of Freedom. In the appendix to his article, presents Regan an interesting argument which, if successful, undermines the thesis. It is addressed at simple one argument I made. I suggested if one that knows that another performs person better than (in oneself the sense of making correct the decision more often), and if one has not further information which would suggest in which subclass cases of the other person's judgment is better than one's own, then one will do better by following the other person's advice than any strategy by which will assign some weight to both one's own independent judgment and to that person's advice. My suggestion that was this informal argument can be formalized and be can generalised so that will it apply to all cases which display these features, however unlike they are in other respects to the example I
44 1989] 1195 FACING UP illustrate used In reply, Regan attempts a more rigorous my to point. assumptions statement in the argument and finds of and the the steps that the His version of the failed. his attempt at argument generalising plausi- This seems to me conditions. certain under only argument holds 84 reason to believe that my informal argument ble, be but I see no cannot generalised. by opinion between us revealed of one substantive difference The reasonable for that it would be suggestion Regan's in this discussion lies envisaged in my example, who lack any further people in the situation a policy following their own judgment when of adopt to information, are authority when they and following the case is clear the they feel that when they feel that the case is close. Regan thinks it is a less clear, or make more mistakes in the for people the part, that, most priori true this in the former. I doubt case assumption in this latter of type than tend to think that it holds good only where people have a general form. I of determines grasp the correctness of decisions, or good enough what of lucky have discovered a good correlate to cor- where they are enough what of have but a poor understanding they though even rect decisions other correctness their accounts In of cases, especially the for decisoins. in which they hold mistaken beliefs in the matter they decide cases about infla- between relations the they about wrong a have belief (as on when the and shares, or where they hold some astrological theory value tion of that there is a believe is wars), no reason to there success the about of the as seeing clear and a likelihood of positive correlation matter between 8 right. being makes a decision right then does have an account of what When one to indicate in information required may additional one have the well cases than other person is worse of oneself. In such what subclass the that not the person's advice regarding follow subclass of one cases should argament my of aim the to conforms realises, Regan this As all. at cases meant to show that considerations of reliability may lead to which was views preempt judgment or to their dismissal as letting others' one's irrelevant.86 argument not provide As complete account of his does one has to reserve final Regan 84. a judgment. is possible that something like Regan's thesis is true in a special range of cases, or in 85. It such direction. Whether there is some theory Evolutionary may lead one in form. much qualified priori to that effect is moot. a thesis any views, however, may serve as warnings that 86. may wrong. As such they may Others' one one double check or hedge one's bets. make
45 1196 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA think that has not produced a counter-example to my argu- I Regan ment. I am But not that confident counter-example no be can found. own Regan's at attempt a counter-example amounts to an treating expert's advice weighting as a consideration, use to terminol- Perry's 7 8 ogy. The argument can that be made at least under conditions some one when reason to has weight give extra another's to that judgment person has authority over one. is It not easy to make this idea more precise. It for calls an evaluation two rounds. in subject the First, forms a judgment issue on the at taking hand, into account advice the received by others but (all excluding some of the) or considerations on which bear the reliability of that judgment. In second the round, brings one in those considerations example, (for am somewhat I intoxicated, am I or rather ignorant such about In issues). light of these considerations may one come to the view that the judgment the of person other should be given a weight greater than one was originally inclined to give it. When these as yet and other unspecified conditions are met then the other person has authority over one. Neither nor Perry Regan strictly is committed to such though a view, some their of points suggest it. The matter seems to me fraught with difficulties requires and much more careful considera- tion than can give I here. it RESPECT E. FOR LAW and Both Regan Green object to my claim an that attitude respect of for law, which expresses itself in a belief that one has duty to a the obey it because law the is our law, country, law of our expresses identification one's with and society identification is, when such is self-vindi- valuable, cating, that is, that who the people such an have the have attitude duty believe they in. Regan believes respect that provides for law for reason obeying law. the But he denies that it amounts obligation to an to obey. He professes some bewilderment about difference the between having an 88 obligation having and am a reason. I that sorry he does not advert to my attempt elucidate to terms duties in of categorical protected reasons, that which is, ones not do depend the desires on their of subject (though 8 9 they be may sensitive to them) and which preemptive have force. How does apply that to and respect the obligation of obedience? To recap briefly, argument is my as follows: Respect for law be can reason a for the law obeying can because it an attitude manifest of identification with Perry, supra 87. 2, at 913. See note See Regan, 88. supra note 63, 1035-36. at See 89. Raz, and Obligations, Promises in LAW, SOCIETY AND MORALITY, ESSAYS IN HON- OUR OF H.L.A. HART (P.M.S. 210 Hacker J. & Raz eds. 1977).
46 1989] 1197 FACING UP or one's attitude may be valuable. I shall say nothing such society, an when why valuable to identify with one's society, and to about it and is through this express attitude to law. But one's its how can respect for law does so in expressing trust in the the such identification? express It of passed law and is in charge the its which the of government society one's confidence that one's society and its enforcement. The trust shows and that and large they do so in the right institutions work together, by the expressed oneself bound to obey holding law is in way. The trust by the government, without submitting every because and it is made law scrutiny see whether they are the to or whether careful to regulation best, or whether one has reasons they obey or to disobey them. are just, to such by case scrutiny one accepts the law on trust as Instead of case This binding. is of one crucial a very outline crude argument. step in the But if at all valid, it establishes a preemptive reason to makes it clear that in it as a duty. Regan qualifies expressing his that therefore obey, and (and consent) amounting to a duty to obey doubts not about respect does argument. address this an not is This He finds on part. oversight his argument unper- the he says, the form of inferring from "It suasive. be a good It has, would 9 "X", where "X" is a moral that X" " Regan is if thing proposition. anyone should find this surprised valid form of argument. Perhaps that a the general form it is not valid. But a suitably restricted form of in very a it justification of normative conclusions on standard is presumptive may grounds. example: if such and such a instrumental argue, One for duty exists (e.g., duty give to charity), then a to char- people will give to is is people should give to charity it that right to con- it Since ity. good being equal, that they owe such a duty. The clude, other things only of argument is that it was not instrumental, but tries unusual feature my (an intrinsic it involves self-reference Therefore, atti- an good. to justify by the goodness of itself). Regan tude not find these being justified does problematical. assume that he objects I the justification features novel to duties on instrumentalist grounds. But I of not clear what his any am 91 objection is. at 1037. supra note 63, Regan, 90. the is point is related to what is to me this most obscure aspect of Regan's guess that 91. My to comments. true moral reasons (unlike mere rules or thumb and other instrumen- He seems raise contingent considerations) to an or tal That is why he suspects that elevated level. to I wish regard why legitimacy than my arguments justify, and thicker he insists that authorities and as authority merely on indicator rules which establish neither legitimacy nor are and which cannot based duties, obeyed. find all this mystifying. To my mind the I of considerations that Regan and I have be sort
47 1198 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 62:1153 Green does not Regan's share misgivings about my handling con- of sent (Regan regards consent and respect in as the same boat, in as most respects I do too). But he objects to the argument for a semi-voluntary obligation to obey the law deriving from respect for the law. It is not clear to me which part my of argument he rejects. He does not seem to reject the factual aspect of the argument, that some people have the beliefs and the attitudes I described. His objection is to claim the that their beliefs are self-vindicating. He makes one point: To express identi- fication, an action must be appropriate to this role. Obedience is not 9 2 appropriate. have I to admit that I am baffled by this claim. is It not 9 3 backed by any argument. I All can do is repeat briefly my position: The normal justification thesis shows that an obligation obey to exists when the government can be trusted guide to one correctly, that is, when following its guidance conforms to independent reasons. Belief in an obligation obey to is, therefore, an expression of trust in the govern- 94 ment. Trust fitting is a expression loyalty of and identification. is It a conventional expression of loyalty to one's spouse or friends. And it ful- fills a similar role in our attitudes to institutions such as universities or trade unions other or associations of which one may be a member. In the life of some people, that is those who regard their government and their law as an aspect of their society and its life, trust in the government expresses identification an with the society and is expressed in a belief in an obligation to obey. I As have already mentioned, such identification valuable is only under certain conditions, among them that people's trust in the law is not completely misplaced. is It misplaced, for example, in an unjust legal system. Such system a does not deserve to be trusted, and no valid obli- gation can be derived from someone's belief it that does. This means that respect law for is not the normal justification for authority the of the law. It is dependent on and derived from the normal justification being met to a high degree. But when this is the case it is an important secondary justification, and it helps establish the authority the of law beyond the been examining are precisely the considerations which validate claims of legitimacy, duty, and obedi- and ence, if this makes such terms thinner than someone thinks they (whatever are that may mean), so be it. 92. See Green, supra note 53, at 812-18. 93. Green has a brief and inconclusive discussion the of appropriateness of obedience as an expression of gratittde, none but of the suitability of a duty of obedience as an expression of identification. 94. The "therefore" is a bit quick. too It assumes that the basic stand of the normal justifica- tion thesis reflects the common view authority of in our culture. I believe the assumption to be well- founded.
48 1199 UP FACING 1989] set normal justification thesis alone. The value of identifica- by limits the other aspect in the law which for compensate in some a lack may tion mean not complete." would its is authority that otherwise AUTHORITY AND CITIZENSHIP ABOUT QUESTIONS F. a as assigned consent I role to disagrees with the modest Green case. saw above, he has a good we As authority. governmental of source regards consent. He the role of explanation of different a But he has to the role of citizenship, on consent authority as resting governmental and of an of of the government authority the acceptance which includes 9 6 suffi- as yet, seems to me to lack, This view law. the obligation to obey example, indicates, Green merits. for evaluate to articulation its cient 9 7 sense, extended" in apply to consent "a somewhat he understands that for as consent. We are not told, of what counts no analysis gives but he whether they are or for life, undertakings bind instance, whether such consent factors regarding whatever justify revocable. My that conviction other cases which fall short in of the law as binding exist authority the to an as law for develop of respect to idea the as well of consent me led of aspect does not react to that Green of obligation. source additional role about us much citizenship, the of Green tell Nor argument. does the is says insuffi- he little The it. individuals who assume to or its value the in reside that value does not precisely whether one to allow to judge cient I is society, which the value their citizens with identify to enabling respect both and appropriate conditions, under as claimed validating, much that consenting to obey that so "lflt not Green says is consent. society, but that it con- one's of belonging feeling to expresses a valuable be a may as regarded a form association of which cretely instantiates 98 the of that form of value However, when he describes shared good." all of of civic ties and social solidarity it terms he in explains association, (secondary), compulsory a identification is a possible, not but view in that 95. Notice my accepting a by may express such identification authority law. Moreover, people of of the source the in serve to duty extend it to all but the example, may, They obey. to for qualified obligation the that add should I 259. supra 32, at LAW, OF AUTHORITY note THE RAz, J. See armed forces. reason to regard it some Green, by who seems for appreciated the justification secondary nature of is Green, (1988); 182-84 STATE THE OF to AUTHORITY GREEN, L. See view. my THE an as objection only is the Green's own since consent, which view in 53. note all the more surprising This is supra normal justification dependent for is on the its itself validity obligation to obey, an to way establish extent greater a to dependent it This makes autonomy. of the of condition thesis satisfaction and justification degree between which the normal the to trade-offs it is in my view, since I allow for than is and the value of thesis identification. satisfied passim. note 818 at 53, at 7; Green, supra 95, note cl. See supra GREEN, 96. L. note 95, at 205. L. GREEN, supra 97. Id. at 208. 98.
49 [Vol. 62:1153 LAW REVIEW CALIFORNIA SOUTHERN 1200 9 9 or may not mean more of citizens. role This may the who those share the citizenry, and what belonging of identifying with, to, a than sense of to know. told enough are not We attitudes. such is implied by no I that there are not visible differences am suggesting, of course, Green's between Here are two view and mine. my which ways in notion about his. commonality Green is talking the is the than First, is wider citizens. I was talking of a vaguer commonality of belong- of the notion a Clearly, people who did not society. to the authority of to ing consent nor share respect for it, can still be members of the society with the law, identify. I with my society by respecting the law which which I identify which it. identify with a society in thus many views rules I governs and of people who are obtain, of the law. My including those suspicious not reciprocity. Green's does. require becoming a does justification By civic ties only with people who are, in this respect, like- citizen I share ° For the authority of the law which governs minded." Green, accepting shared is society the role of the citizen part by only some of whole the of This seems to me to tell quite decisively against Green's its members. in Green's can have effect only consent societies which Second, view. 0 a role conventionally citizen.' have Mine contains no such limita- of tion. requires a society in It respect for is a recognised which law way of loyalty, but it does not require the socially defined trust expressing and and citizenship defining rights that marks Green's complex of duties view. pending one consideration which, mention a further Finally, let me Green's view, seems to me to militate against it. elaboration do not of I that notion of citizenship is tied to the law in the way sup- believe our Green. there doubt whether by is a social role of citizenship posed I the our makes a difference to society obligation under private which in to perform one's contractual undertakings or to a surgeon's duty to law due exercise care surgical operations, etc. in seems to a Citizenship be people's public may well affect It attitude toward and notion. political public law, that is, to those which define political system of gov- and the and public character of life in the society concerned. It is ernment the whether it has much to do with relations between doubtful in individuals what generally speaking, the private domain. is, Id. 99. excludes not only "foreigners," but also those It are legally citizens but since they 100. who consented to this never are not citizens in Green's sense. See Green, supra note 53, at 817-18 status, (warning us of this fact). 101. Id.
50 1201 FACING UP 1989] LAW PRECEDENTS AND III. LEGAL OF THE A. LAW FUNCTIONS article, his In considers the some Burton of questions fundamental such legal as of philosophy, the reason, law, between relations and moral- require much further thought. The limita- ity. He raises issues which me of engaging in that debate here. tions from the occasion prevent However, address briefly will I views. a few of Burtion's definition Burton law which is sufficiently favours a generalised of with be line approaches to law. Such a main all to consistent imprecise indeed may definition popularising have some use in ideas. philosophical It limited than meets the eye. however, is only to be use is, more Its legal theories will converge when expected come to that divergent they phenomena This does not guarantee convergence identify the discussed. the of underlying structure of theories the and their of or motivations otherwise. But nor divergence of suppose insights, Burton does the it difficult to defend the underlying justifications may make generalised, imprecise taking definition without controver- sides philosophical the in sies avoid. that Burton wishes to another limitation More his approach. It is tempt- interesting is of think, Burton does, that a generalised and imprecise definition ing to as his, any less likely to be wrong than like of the more sharply of is law, mistake. legal But this is a philosophy. There is no in defined theories think e.g. that the next theory to appear will fall within the reason to by sphere demarcated definition. generalised the theories Since new invariably almost revision, conceptual involve may across well they cut in survival definition. The upon of the conceptual the distinctions relied representation a definition the as of the broad consensus depends on and one's luck intuition way in deciding which to from generalise existing theories. example, for is It arguable, that Perry's conception of t 0 2 generalised definition. is with Burton's Perry con- the law inconsistent 0 3 according of law,1 analysis function the to which general of siders my supra note 2, at 102. See Perry, 958-59. 103. Perry discussion of the nature regards my general a Dworkinian interpretation. as of law 948-49. This it is not. This is not the place Id. analyze the differences, but I'll mention two: In at to terms may say that my aim is to analyse the concept of law, whereas Dworkin Dworkin's you concentrates proposing of law. a particular on conception am committed I not accurately, More to which is the to Dworkinian interpretation. Second, Dworkin concept/conception distinction crucial any interpretation is successful in proportion to its ability to present whatever it inter- thinks that being possible. good as is as prets as not I this is an aim or think that do the success of of a criterion general, nor do I try interpretation present an explanation of the law which makes it as good of in to kind, its whatever that may mean, as possible.
51 1202 [Vol.62:1153 LAW REVIEW SOUTHERN CALIFORNIA guidance institutionalised is the most abstract of conduct statement of the function of it and own: law, with contrasts his function "[T]he basic guidance of the citizens' conduct as not but rather the of law is the such resolution of disputes in accord- institutionalized adjudication and social 4 morality."10 political and personal of principles appropriate with ance his other people's, response to anticipates claim. fully Perry my, and The discussion are not in the least incompatible. two functions under Indeed, have long for I, example, legal that maintained systems all pro- vided for resolution processing or the unregulated disputes, of that is, pre-existing laws disputes not uniquely determine regarding which do answer, whose one correct but use the requires resolution judicial dis- of 10 5 is true It cretion. do I believe that all legal that not systems provide of all disputes. If that is part of Perry's claim, then I the for resolution probably be But he would mistaken. disavow to factually believe him of his thesis. Where then any the difference? such interpretation is is Perry's One problem that the function of statement law's cannot whole story. It leaves out be importance of legislation in the law. the the replies morality dictates that disputes should be resolved on Perry that of statutes, the basis where available. are statutes such In way legis- this lation by his general is covered the of of statement function law, the is which This, however, refers an inadequate response. to morality. legislation is Racialist of South African law even though morality part does require not judiciary in Africa the South it. This to enforce state- is ment controversial, need but the point abstract are not be. There "evil" statutes in various legal systems which morality does not require enforce, but the are part of the law. That judicial disobe- judges to which the dience of law is a justified morally is logical possibility which Perry's conception law the not admit. of does law-making Guidance through is an feature all law not of essential it, but morality because requires simply law is this kind of a social because the institution. second is A problem own Perry's assumptions that make clear that not presenting he general is a of the function of account since he law 10 6 that does not apply to the criminal law. concedes account Perry his argue that statement of the law's general function is similarly may my at 958. 104. Id. of 105. task follows inevitability The the impossibility in principle fi-om the drawing a of sharp regulated unregulated disputes. between and divide 106. criminal law in England Since the largely a common-law-based branch is the at of law, in its and general principles, least origins is evaluating to fact some this crucial Perry's of further claims. He may, for be forced to entertain example, possibility the that law has two doe- English for of one for trines law and one precedent, public law (including the criminal law). private
52 1203 FACING UP 1989] pro- Judicial conflicts. of resolution the mentioning not in incomplete to ought parties the how of to determination lead however, do, ceedings is of disputes resolution that assumed I why is This themselves. conduct The by law. of behaviour guidance institutionalised the of aspect one but my of feature a key been has always law the of aspect this of centrality singling to objection no of course have I matters, clarifies it If writing. recognise to amended is it once mention, special for function out Perry's dispute for standards of a source as of law-making importance special the resolution. PRELIMINARIES SOME ADJUDICATION: LAW COMMON B. interesting is what misses discussion preceding the that is truth The gen- far too law is of function the of statement His views. Perry's about views. distinctive of his burden the carry to incomplete, as well as eral, posi- to my his objections of substance the examine will I sequel the In on based of himself, characterisation general his of independently tion, have we that law of function the of description the of endorsement his My (1) claims: separate two is making He adjudicativist. as examined, (2) (implicitly) and inadequate; is adjudication law of common account non- and law between boundary of the law, of limits the of account my It offered. is for (2) argument explicit No inadequate. is standards, legal my Undermining (1). for argument his by supported implicitly is claims my to undermine meant is adjudication law common of account of common issue the on only concentrate I will law. of limit the about of adjudica- understanding my challenges also Moore law adjudication. interpretation. statutory concerning and precedent regarding both tion, my since objections, Moore's to response a with start to useful be may It previous in my obscurities clarifying in mainly consists them to response writings. 7 V.° Part in his objection Moore's to directly reply to unable I am misunder- to have seems Moore that fact by the obscured is vision My states simply points other at and counts of number on a views my stood to try me Let agree. to reason no I see which to propositions given as points. of these some clarify such that do I believe nor precedent," of "a theory have not do I (1) to ought judges how about a theory means one that if by exists, theory a differ- law of matters largely are These precedent. treat or cases decide they that mean I not do countries. different of law the by regulated ently 883-85. 4, at supra note Moore, See 107.
53 62:1153 [Vol. 1204 LAW REVIEW CALIFORNIA SOUTHERN subject to legislation or precedent. Even where they are, are explicit but these picture of the law, which is in the main con- an give imperfect practices of courts and of the legal profession. There by stituted the the true, are, it is a general few jurisprudential make one statements can on they do not amount to a theory. In Chapter Ten of The these issues, but I outlined the features of Law, English practice in Authority of some how to order illustrate jurisprudential of general some the points in fit 0°8 one country. with Naturally, different accounts the practice of are show the same jurisprudential points fit with how practices needed to the countries. different of do believe that courts (2) discretion in every case, in so- I have cases less than in so-called hard ones. In every case, e.g., called.easy no has the distinguish a binding precedent, and in many discretion court to discretion overrule it. the to has it not sure what Moore (3) in mind when he refers to the I am has of influence" that a precedent may have.109 I do "three think levels not is view which I hold. Perhaps I believe in two levels of influence. that a precedent has binding, and binding (in England) to be followed A is like it or overruled. Besides, it, distinguished any other part of unless is law, affects moral considerations in the the that any fact does. Like way the of a wall, it may indicate the moral desirability of an indi- existence approach, or unattainability of certain goals. In my view, this is rect the way the analogical arguments. They show how a new to best understand with decision fits the facts. They are not existing against it, reasons for or information which is relevant to such reasons. provide but they says that I "cannot mean (4) judges should.., regard Moore that ratio a protected reason] when they are distinguishing or the [as for here carry out their obligations it... judges must not extending to 0 that any I am afraid considerations." I disagree. There exclude moral at least one legal system, namely, the English one (the only one is was I discussing the text considered by Moore), where they must so regard in ratio. Naturally, fact that the ratio is a protected reason does not the the a the they decide to lay down when similar rule for cases impede courts which the ratio does not apply (that is, when they extend it); in such to they interfere not cases with the existing law where it does apply. do is it same, its protected status the not called into question Since remains See J. RAz, THE AUTHORITY 108. LAW, supra note 32, at 180-209. OF 109. supra note 4, at Moore, 886. 110. Id. at 887.
54 1205 1989] FACING UP 11 they are distinguished rules are When play. into not come does and basis of non-excluded on the only can modified be they and modified is distinguished is being which rule whole the that fact The reasons. it. distinguishing ground for is not a and excluded, is for example, unjust, the forces which reason protected a is rule the that fact the it is In short, 2 claim, his defending In overrule. than rather distinguish courts to 113 a limited that above considered allegation to his resorts Moore simply 4 refute not true, does even if This, is undesirable. to distinguish power as shown Furthermore, law. in English limitation of such a existence the advances he reasons in the mistaken is Moore discussion, in previous the 11 powers. of judicial restriction all of the undesirability for that I said statement. careless in another me caught has Moore (5) of weight the not carry does ratio of the formulation actual the reason the formu- their in careless little a often are courts is that language statutory 1 16 legal the between the difference if as sound it makes This lations. moral universal of is a matter noted there precedent and statutes of effect and law, in English exists distinction that that is I meant All necessity. prac- had different a Of course, reason. of that because sensible it is that like legislative more much become have would judges prevailed, tice their habits. in draftsmen the for justification the ratio the is say that however, not, did I (6) what understand when we but stated, is what is ratio The holding. stated to the importance the same attribute to entitled are not we stated is The with statutes. do as we isolation, text in the and to words, of choice in Both context-dependent. more much is is stated of what interpretation first the of precedents interpretation the in and interpretation statutory interpretation to more much there is last, since not the (though question concerned are Both said. was is) what is it as the law than explaining take place acts but these of communication, acts understanding with different leading to of communication, practices different two within interpretation. of conventions and different of expression styles is Raz by "This thought starting paragraph in the by Moore be recognised to seems This 11I. preceding his from I cited claim the contradict to me to seems which "id., with... inconsistent not paragraph. distinguished be can states when cases which of the doctrine emergence the for The reason 112. separating of practice the to extension by led This overrule. may not courts many that fact is the both. can do which of courts in the practice even from distinguishing overruling notes 19-23. accompanying text See supra 113. note at 4, 888. Moore, supra 114. relevant in ignoring not is mistake that Moore's suspicion my repeat perhaps, should, I 115. features. their logical mischaracterising in but considerations, moral at 888-99. note 4, supra 116. Moore,
55 1206 SOUTHERN CALIFORNIA REVIEW [Vol. LAW 62:1153 hope that I remove clarifications these inconsis- both the of charge the and tency of problem of abstraction the level at which to understand the ratio. Both objections depend misunderstanding the on same of my of language is not canonical in the way the observation that cases the is. of language statutes (7) There remains one last objection (not counting as an objection Moore's case a that which observation core may of be within the one rule may be within the his nor another, of penumbra needs remark that one a linguistic theory the difference which for accounts and between core penumbra). says that Moore I called the to according what pre-emption should thesis one not reasons for rule when count the the a applying rule, the rule but the for reasons count when interpreting its application to impact which on cases its do not is any vague. I see All problem here. I for have argued are the identification two points. First, rule legal a of independent should be reasons the the rule. of for applying Second, a in rule cases in of its weight and that conflict, it is based upon the of reasons both count. Neither should not is of by considering these affected the for particular reasons a deciding whether rule should in it to cases apply to it does not clearly which apply. Such are law-creative applications than law-applying, rather whereas elucidate observations my nature the application the of of rules. is point last The relevant an assessment to of as criticism Perry's well. He mentions as his view that an advantage of con- courts "the stantly in touch, so to speak, stay first-order reasoning with the ultimate 1 17 ' of the which is the subject process." weighting presumptive is This and true consequence is an inescapable my analysis as well. Since of at least have courts discretion, discretion to England) (in distinguish, in every case, to consider the reasoning they have legal the underlying rule in the which applies least where the use case (at that discretion is of seriously in question). I explained As is this consistent above, both with sources and with the thesis the judge-made exclusionary character of law. proceed with we Before Perry's main arguments, in different strands should his criticism Though separated. he be issues treats if the all as they Perry criticises my were one, on three distinct, and views logically issues. independent he argues the First, that set precedents binding by common law not courts should interpreted be protected as reasons. Sec- ond, he claims the rulings of that such courts be identified inde- cannot of reasons pendently the led to their adoption. which Third, holds he 117. Perry, supra note 2, at 972.
56 1989] 1207 FACING UP some version of the "no difference" what call I which according thesis, to judicial on the decisions are taken of what he calls "morally basis rele- basis of forward-looking rules laid down in reasons, vant" and not on the precedents."' binding the It is second only on tentative my issue, espousal of the sources thesis, addresses criticism his that itself to my theory other The law. of points contention concern two of to my attempt 1 19 practice the explain of the English precedent in common law only. EXCLUSIONS C. SOURCES AND ON start me Let with Perry's challenge radical theory-his my to chal- thesis. He advances only one argument, which I will lenge to the sources quote: of attributes a certain pre- conception The non-exclusionary precedent does reasoning previous decisions, but it the not to weight sumptive of identification presuppose that the will that of reasoning value be itself free. Often will it reconstruct to necessary be the arguments a previ- of decision, ous unavoidably relying on own moral sensibilities one's in 120 them. of understanding clear a at arrive to just order in process, the the fails. As identify it court's reasoning I stands the argument To in a way I know or believe that the court was likely need to reason to have reasoned. was of my moral If court the may then sensibilities, I moral sensibilities in doing so. But rely would not be indeed on my this moral my because by me views are (believed but correct, to be) because by court. shared the they are not violate the That this does thesis sources clear from the fact is I know that the court's that if sensibilities moral mine, I will not rely on my sensibilities in reconstructing its differ from I reasoning. Rather, whatever on will I rely know court's the about 118. 2, at 981. See, supra e.g., Perry, note as positivist position identifies Perry While my on on all three of my account views that myself regard legal issues, I he knows committed positivism as like the sources thesis, that is, to a view like the one I discussed on the only of to something second issues. the three that claims Perry his 119. explanation vindicates Law Common the of theory of law. Dworkin's only a tenuous connection between his views and Dworkin's. Perry agrees But Dwor- there is with with others, that what is law and what is not many in part, a moral question. I will argue and kin, is, point is not supported by the rest of that views. More pertinently, Perry's view of civil this Perry's adjudication identical with one interpretation of Dworkin's Rights Thesis, that is, with its law is the interpretation view as a in courts should deciding case that the relative merits to regard have the of the litigants only. of is quite likely, though I will not argue the point here, that this is the case It way Dworkin himself understands his thesis. See, Raz, THE AUTHORITY OF LAW, supra not the note at Many of Dworkin's more distinctive 32, 123. neither nor are supported views contradicted account. Being an account of private law adjudication in the common law it is, not by Perry's mine. with variety of legal theories, including, as I will argue, a consistent surprisingly, Perry, 120. supra note 2, at 973.
57 SOUTHERN 1208 LAW REVIEW [Vol. 62:1153 CALIFORNIA to views reconstruct arguments its on the occasion is which concern of to Since me. of structure the reasoning in my cases the two the is and same, since do not use I reasoning moral sense a in inconsistent with the sources thesis when I reconstruct the reasoning of non-like-minded a court, follows that it violate not I do the sources thesis in reconstructing 1 2 1 court. like-minded a of reasoning the Are common law decisions protected reasons? I explained Above that there no logical is necessity for the decisions of the highest court of appeals a of country that to hold must it view its own decisions pro- as reasons. tected My general way of understanding the law that entails those who not have do to power change the law are legally required to view it a protected as reason. This that if entails decisions legal create law, then courts of first instance only can have a power limited to change the law, that is that they legally are required to regard it as a protected reason. But, I suggested above, need the same to not the apply highest court(s). It may able be to change the law whenever fit it sees in light of the balance reasons. of all understand As I him, does not Perry deny that common law prece- in dents are general protected reasons. He does not deny that analy- my applies sis the criminal to or, law, presumably, to of other areas public law. concern His is exclusively private with law adjudication. Nor does deny he that to the prior Statement 1966 Practice English the House of Lords regarded own its decisions as protected reasons binding not only lower but itself courts as well. This that means deny not does he that lower courts, in England, are legally required regard to binding decisions higher of courts as protected reasons, that and today even Court the of Appeal similarly is required to regard its own decisions as protected 122 reasons. leaves This possible two areas of disagreement. First, the what is degree deference of to its prior decisions which the of House is Lords to bound display today? Here convincingly Perry that argues the court's duty is to overrule not itself unless the earlier decision mistaken clearly is and its reversal would significant constitute a improvement. agree I that this accounts better for the practice court the of than my suggestion that 2 3 the regards court only certain suitable as grounds overruling.' for I 121. an assertion For same of the see point, J. RAz, THE AUTHORITY OF LAW, supra 32, at note 40. 122. For agreement all these on see points, Judicial Perry, Obligation, Precedent and the Com- mon Law, 7 OXFORD J. LEGAL STUD. (1987). 244 J. 123. RAz, AUTHORITY OF LAW, THE note 32, at 114. supra
58 1209 UP FACING 1989] unless overrule not should a court "that said I when truth the nearer was old with the compared improvement is an new rule the that certain is it the courts which under disadvantages "the emphasise to on I went one." consequences and economic social the different to assess in trying labour one acting unless avoid to the need Hence arrangement. legal of different may small it however improvement, an is change the that certain is 124 this aware, is Perry As view. Perry's to closer somewhat is This be." an exclu- to subject court the regarding with is compatible explanation 125 analysis the concerns of disagreement area second The reason. sionary this On cases. earlier distinguish to courts English the of power the of 6 12 I mine. to analysis Perry's of superiority the of sure not am I point, our disa- that noticing beyond here issue the consider however, not, will epi- in part are binding precedents that Perry thinks limited. is greement are they that thinks also He reasons. exclusionary stemically-bounded this views on his right, he is be. If may They reasons. weighted often position general of the refinement and development a further form matter outlined. I have which PRECEDENTS FORWARD-LOOKING D. cases law private all in that is claims Perry's of distinctive most The between of justice of considerations basis the on only decide courts the that statement his of point the to be take I This them. before the litigants the same exactly basis of the on disputes settle to continues system "the 1 2 7 disregard Courts should " as before... considerations moral of sorts any others or welfare, general the justice, of social considerations any They should, litigants. the than other people for concern manifest which binding a is their decision that fact the of account take not therefore, way the Perry's, constrain and in my in view will, both and precedent to committed am I that Perry thinks in future. the decide will courts courts disputes unregulated in I that say because this proposition denying "act and should act just as legislators do, namely, they should adopt 1 28 quota- The is mistake. a this But best." they judge which rules those forward-looking, on based decisions advocating to me commits tion thinks Perry best. the are they if only considerations socially-oriented accompa- text supra also see at 190-91; 32, note supra LAW, OF AUTHORITY THE RAZ, 124. J. 32-34. notes nying at 15, note supra OF FREEDOM, MORALITY THE J. RAZ, 934-35; 2, at note supra See Perry, 125. 62. analysis. Perry's 122, for note supra Perry, See 126. 2, at 972. supra note 127. Perry, 197). note at 32, supra LAW, OF AUTHORITY THE RAz, J. 984 (citing at Id. 128.
59 SOUTHERN 1210 LAW REVIEW [Vol. 62:1153 CALIFORNIA such decisions unjust. If he is right, then they are not the best that are not and should the courts. According be by adopted injus- Perry, to the considerations has much to do with the fact tice the of forward-looking But mine, amount to retrospective legislation. they as like in that, a view Parliament to enact the best rules does not commit me to my advice to recommend retroactive Parliamentary legislation, so the same to advice commit me to recommend not judicial decisions. the does courts unjust in trying to understand how The law adjudi- first question common in is, how do courts decide practice Do they take works cation cases? forward-looking considerations? Perry is clear in his own account of they should not. But can he also argue with the same confi- mind that they dence that seems There do to not? be the to too much evidence contrary. It is, of course, practice the possible that law courts of common the and Perry appears to belong unjust. the many theorists unfair is with it difficult, and in the case of who impossible, to entertain the find some, that practices of the common law courts might be unjust. It is idea the of they like mine that advantage leave the question open. But I an views involved. exaggerates injustice that may be the To see this, think Perry that the court's decision is no precedent at imagine Should it take all. into account considerations of general social distributive welfare jus- and and between Take Perry's example parties? assume tice the in deciding "the Hand test would, if complied with by the bulk of with him that the 2 9 1 occurrence." accident of level optimal socially the to lead population, that this means it Assume is the legislature justified for adopt to it. it Given did that not, take it court account? the should into I think that, being equal, it should. If other Hand test sets the just standard things the responsibility negligence, then people should in it, whether it for observe legally binding or not. Even where it is impractical to be guided by it is before the people should accept it as a basis for settlement of accident, claims after harm occurred. At the very least people should damages the conform help it in order to to in establishing or maintaining a to agree just which be, by hypothesis, will if generally complied practice social it. Given that it is the relevant test which applies to individuals, it with should, by own standard, be the basis of the courts' decisions. Perry's things I so far, then, other right being equal, the distinction If am the forward-looking considerations, which Perry condemns, between and the "morally relevant" ones, which he approves of, so-called illusory. is 129. Perry, supra note 2, at 983.
60 UP FACING 19891 already is not test Hand If the not equal. are things other course, Of Quixotic. merely it is to adhering my then example, for observed, widely do I that Given it. to adhere to reason no I have and good, no do will It me. against it enforce may not the courts it to adhere to reason have not set do not the courts that fiction the remove Now so good. far So real- the to return and decisions, future their constrain which precedents what affects me, to seems it This, standards. set binding they do that ity it if should, court that the know, can or know, now I do. to ought I it if it does because test, the Hand adopt injustice, so without do could of aware be to is bound court the and society for standard the just set will that know I effect. to best its power use to and decisions of its the impact forewarned am I my knowledge Given that. know that I knows the court not is it that that means And applied. be would formula Hand the that complex the once speaking, Formally me. against it apply to unjust is It tie. a is result the out, spelt carefully is situation the of reflexivity am I and applied, be will it that forewarned am if I test the to apply just be To forewarned. am I if applied will it be that that, i.e. of forewarned to be as same the is not forewarned am I if apply will it that forewarned is, that element, the extra add we once But apply. will it that forewarned rele- the have I then standards, such apply to is practice courts' the that other is, it exists practice a such which in countries in So warning. vant just. equal, being things always not are things other that again emphasised be should It established is solution just completely less than a if example, For equal. contemporary in individuals, for reasonable be may it then precedent, be fol- to is likely the precedent that assume to countries, law common thought be will it or because attitudes, judicial reflects it because lowed, is This on. so and expectations, settled many of basis the been have to to unjust may be so doing for overrule, not may sometimes courts why con- decision a court's that fact the however, Generally, litigants. the par- to the both available information, relevant is decisions future strains in a the parties between is just what affecting and court, to the and ties large. at society for best morally is with what line it into brings that way he which in passage the Consider wrong? go Perry did Where is which a standard is rule exclusionary forward-looking "[a] that asserts the at which but citizens for guidance exclusionary provide to intended of resolution moral the on way direct any in bear not does time same ' 13 0 it First, mistakes. two incorporates passage This disputes." existing at 982-83. Id. 130.
61 1212 SOUTHERN CALIFORNIA REVIEW LAW [Vol. 62:1153 assumes that whereas it possible is to rules set which are epistemically- bound exclusionary reasons on the basis considerations of affecting jus- tice between the parties only, is it impossible to set rules which exclu- are sionary reasons of other kinds on the basis of such considerations. In other words, Perry confuses (in the case of ordinary exclusionary rea- sons) the distinction between the effects of ruling a and the reasons for it. He wrongly assumes that the effects of ruling a of an ordinary exclusion- ary kind make it logically impossible to argue it for on grounds of justice between the parties. Contrariwise, he equally wrongly assumes that a rule which epistemically-bound is must be accepted on grounds of justice between the parties and nothing more. Second, is he wrong in thinking that the binding force precedent of has no moral implication to the rela- tions between the litigants. He fails to see how can it affect what is just between the parties, just as any other fact can.' IV. QUESTIONS OF VALUE AND AUTONOMY A. WELL-BEING In Regan's sketchy discussion of my remarks well-being on and on the role of social forms he manages to raise some penetrating and far- reaching questions. The importance the of problems he touches on, and the admitted incompleteness of his arguments, indicate that it is best to leave these matters for further contemplation. may It be best to await the full articulation and defence of Regan's views in his forthcoming book. Given, however, that he claims to have produced some conclusive ad hominem arguments against some of my views, I will venture a few, rather disjointed and incomplete, observations. Regan thinks that ultimately people's well-being is not what counts. People pursue (or strive to pursue) valuable goals, not people's well- 3 2 being.' thinks He that argument my against the independent value of 131. One last remark a on related issue. Perry is right to point out much that of private law is dispositive, that and some of it, like the of rules strict liability, cannot directly guide behaviour. Id. 986. at He fails realise, to however, that dispositive rules guide behaviour barring agreement between the parties, and rules that which do not directly guide behaviour may guide indirectly, it for example, by determining the cost of certain activities thus affecting decision one's whether engage to them, in under conditions what to do so, and like. the 132. This view is consistent with admitting that advancing some of those goals will advance people's well-being. Regan mentions, example, for community both and friendship as valuable goals. (Though his suggestion that there is a strong relation between the two indicates that are we likely to at be in odds understanding our of least at of one them.) Regan even may go further and claim that any time one advances a worthwhile goal serves one the well-being of some people, i.e. who those pursue it. I rather doubt but this, two suggest facts that Regan hold may this view. First, whereas expected I him, having rejected the independent value of
62 FACING UP 1213 1989] satisfaction also desire I am to that shows wrong that hold individual this is mistaken for a variety of reasons. well-being matters. I believe that the with which Regan agrees, point, people on argument My rests the satisfaction of their false desires, i.e. those based do not desire on where falsity false beliefs, the undermines beliefs their of the reason for follows that one cannot support the value the desire satisfac- desire. It of the ground on tion that by satisfying people's gives people desires one want. they seemingly tautological "people desire the satisfac- what The their tion in fact deeply misleading, and, when understood desires" of is to ways, false. I made this point natural undermine a certain some in is may move people to support the independent value of intuition which sensible desire-satisfaction. based on the view that we should A outlook what of desire should take account people the fact that their they give premised on certain assumptions, and recognize that when are desires well-being, to base his own views on individual value of certain (possible) goals, he does in fact the refer not to worthwhile goals but to worthwhile goals which are in fact pursued by continuously This may explained by a belief that only pursued values are worth pursuing, i.e., that only people. be values. but in criticizing my view that not the realisation of one's valuable goals are they Second, contribution seems their realisation matters, Regan one's committed to identifying the suc- only to two of goals with their well-being. These worthwhile points taken together suggest that cess people's people's well-being may not matter in itself, whatever one has while to do will serve the well- reason being people. Regan is right to point out that while this is so, the action of those who are guided of his moved will differ from the action of those who are by by people's well-being. The principles serve will guided by certain latter about the strength of the competing reasons to be the well- views being various people, which of absent from his principles. are In two respects I have failed to be as clear as I should have been. Regan's resulting misunder- standing of my on these may have exaggerated views matters of the our appearance disagreement. people's that all aspects of the success said failure of not goals, or projects, reflect on their I When or was thinking of goals such well-being finding a cure for AIDS, or solving the problem of the I as Regan have in minds goals in a slighly may sense, according to which an individ- homeless. different goals are rarely more than making a contribution to achieving the goals which ual's in mind. I had In sense the success and failure of his goals affect his well-being. In my rather expansive sense that "goals," do do so. For in the narrow sense of always their success or failure is the success they not failure of the person who has them. In the wider or of the term this is not necessarily so. I did sense not as Regan suspects that I did, mean, that well-being is merely a function people's of success or failure which is due entirely to their mental diligence, intentions, negligence, etc. So-called "objec- tive" factors, are beyond the which of people, well affect control may well-being. their independently my view people's Second, being is while valuable, it may be misleading to in well that people have reason to maximize my (as well as anyone else's) well-being. say apart from Quite the that considerations of the incommensurability of options make reference to maximization fact all this is inappropriate, one sense an impossible one to goal but the agent concerned. Given that in well-being largely consists in the successful pursuit of worthwhile goals, it up to the person con- is conditions Others help, mainly by cerned. to ensure the can necessary for a life spent in that helping way. They ought to do that because well-being counts, but it is impossible for anyone to actually secure the well-being eliminating another. point, while of This not the difference between Regan's views and mine, does, I think, indicate that the difference between our views may be thinner than it might appear to those who overlook it.
63 1214 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA assumptions fail is, normally, no reason to respect the desires those there them. premised on Regan, using view another which we is that namely share, false "it well-being" because that serves our their goals our pursue we pursuit do not aim at their claims well-being there is not that since people own 3 3 reason, which I can as rely value.1 it regard to on, a non- This is a Regan At conclude that insofar as we value giving sequitur. most can at, want, what their actions are aimed rather we they people or what 34 1 their well-being. have no reason conclusion does not to promote This least in the in the undermine belief my value of well-being. independent of my discussion of the issue was to deny that One is any purpose there why should give people what they desire, when this is under- reason we a stood straightforward in Naturally, and ordinary way. would not I for the value of people's well-being on the ground that that wish to argue at want that it is what they aim or in their actions. what they is 135 different. It My was that to the extent that argument care was we 13 6 about people about well-being, care we their for that is what caring means. I buttressed these points by pointing to the contrast about people and well-being satisfaction, and, a point crucial for our between desire by pointing to the coincidence between the agent's present discussion, the outsider's view on this. When I consider my own and and evalu- life, ate course, what matters to me is my well-being, i.e. the extent my life its spent in pursuit of worthwhile goals. The same is true generally was the 3 7 evaluations own life.' of When outsiders consider of people's their do they me, and are, as I claim may should be, concerned what for they they rather with satisfying my desires, than are acting well-being with my with the way I think in myself, and with the way I would, were I tune of wish to think of me. clearheaded, them consistently I Can that in their actions claim not normally people do when at well-being and maintain that own they think of their aim their lives what matters to people is their own well-being? I think so. own RAZ, note MORALITY OF FREEDOM, supra 133. 15, at 317. Regan's main concern is to THE that politics not be motivated by the goal of advancing the well-being of people. See argue should denies note at 1042-43. But it seems that he supra well-being independent value alto- Regan, 63, See id. gether. Even this is an exaggeration for all I was disputing in the quoted sentence is that people 134. or generally, aim at their well-being in their actions. always, enough Though was not explicit I in spelling it out. 135. obviously I.e., about people generally, rather than about those who are our friends, 136. etc. relations, 137. point should be read in light of the This about the scope of moral judgment qualification remarked on below.
64 1215 1989] FACING UP here, but a partial to be adequately analysed is The too point complex It is merely that people need not always aim at will analysis suffice. not do so are not merely that those who is actions. It in well-being their their that is it merely a sympathies. with narrow Nor individuals unappealing this cannot be pursued for and rea- range whole relationships of projects sake, own their or pursued be for can they only their by for son, nature reach beyond the of other people, that so they remain the for of sake at their own well being. people point to emphasize who always aim The their well-being own at aim who Those one. only radical more here a is prosper. cannot conceptual. For the main part, barring the necessities The reason is as and person survival some other elements, one's well- for comfortable a the value of one's It depends on one's pursuits. by is determined being success in what counts is one's But in success them. pursuits and one's for oneself. There is no the identity to pursuit one chose independent could one's choice of pursuits guide activities. that well-being one's and to write a novel in order to advance Can well-being? I can I choose my to earn instrumentally. I can do so my well-being to so advance do this all will advance to literary circles. But admission or gain to money, if I could use the my or my new social standing, well-being only money, and my health Assuming that advance well-being. my which ways in other survival as a person are met, or will be met even if I needs for to become a novelist can pursuit, my decision an choose alternative become one I rede- only by choosing to because advance my well-being of conditions From now on if I am a good novel- my the fine well-being. one, write to fail or become life lousy I if than a a have will I ist better become to myself set a novelist, never I it As all. at happens any novels one write novels does not reflect on my life failure therefore to my and a pursuit of a friendship with goes for The same my another. way or failure friend, person's become that out to particular Having person. set his friendship is my failure in a way it would not be if I never set to keep cultivate his friendship. myself to be met for me what conditions have to choice my defines of So goals my choose to go well. I cannot for the pursuits in order to to life prosper, qualified, and clarified. to be heavily this all has course prosper. Of my be cannot they But as person. survival of needs the a are there First, if I am to propser. For a life of mere survival is not a flourish- only aims To do a good life I must life. something other than merely ing have chances a pursuits with view to my other I choose Second, may survive. that them. Since I am aware of my well-being will be succeeding in
65 1216 62:1153 LAW REVIEW [Vol. CALIFORNIA SOUTHERN by successful of worthwhile goals, I can look among advanced pursuit for goals am likely to succeed in, in order to make those worthwhile I prosper. that is true. It is irrational not to take sure This I indeed of one's and to choose chances goals irrespective account of one's success Can conditions. one of the objective or and talents one's of limitations, with only one view, saying to oneself "I'll choose choose one's goals any- it than in any alternative, in I more likely to succeed am thing provided seems to be well-being?" advance my That for best way I can that is the life own be dominated by one can make one's which in way the only that think to this But flourish. tend and I one's well-being, for concern is closed. avenue success, one should be able to believe that to for that For be it open best goal avail- the supposition, to our is according overall is one's goal about That regarding any one. one is is, to embark on in to able project likely is one success to that the believe to has greater spirit this one to available projects alternative of all the the best it in it achieve makes that none of the available alternatives is better). If one one not (i.e. does and irra- that project erratically that, one can only choose then believe well-being. will not advance one's that It is unlikely that tionally, and condition will be the met in any person's life. Suppose, continuously however, some people are so obsessed with their own well-being that that Can they that the condition is met. delude themselves they believing caught they well-being? No, for are their own sheer pursuit by of prosper with Their this subsection started. argument desires are by the which desires. assumption they are not false the Only if they on premised that false desires can their pursuit are conducive, without qualification, not be their By hypothesis their desires are false, being based on to well-being. If is line of reasoning beliefs. correct, then it is impossi- self-deluding this is belief which the that success miraculous in conditions ble (barring best goal is true for all one's options) to advance one's well-being by one's only at aiming it. best, without giving improper do whatever one seems not Could is concerned only with of success, because one chances to weight one's and in convinced by the argument well-being the previous par- one's was is that way to pursue it best to disregard that consideration agraph the simply do what is best? At this point the difference between the and to their own (and do not give weight who correctly reason people always and do as needs for survival persons), their except regarding well-being, in act who exactly those and well-being, to promote their in it order all same way and know that by the this they do the best they can to doing
66 1989] FACING UP aim, their seems to me to is not though that their promote well-being, distin- it is difficult in general to This not is disappeared. because have at goal and knowing for certain that aiming will be it guish between a distinguish to between be impossible But it may one's action. by realised logi- immediate an is goal will be realised the when the two that the fact 38 action. one's of consequence cal crucial are to which features out some detour brings lengthy This is a there for example, explains, that It aspects of my views. various between conflict that there is no essential for reason conceptual holding their moral obligations, well-being and for their own concern individuals' arising out no conflict between one's reasons or is generally, there more constituted by other of and reasons one's well-being of considerations that observations, my argument shows context Regan's the In of values. actions fact not aim in their people at promoting their well- the that do value not do their case) does mean that people not is the this being (when captures of well-being personal the notion the On contrary, well-being. actions, one's all own lives. Furthermore, their value people about what and successful, necessarily serve one's well being. Finally, if justified the explains difference between the first the and the third argument person perspective. person define our the conditions which As determine agents choices our our goal. As outsid- is not necessarily well-being well-being. own Here the of others in way it was well-being our the actions affect ers, however, of at aiming find it natural to talk Here we their by determined choices. gener- people for is the way that concern This of well-being the others. 39 itself.' express must ally his the chest of cannibal of cuts open whether the who is This to the old question related 138. guilty to intentional can for ceremonial eating plead not his heart extracts and victim unconscious on the ground that while he knew for certain that his victim will die he did homicide intend to only his death. in no way did he intend and extract heart, his (if of the counterfactual depends this the meaningfulness contention it on there in anything is If the macabre joke): The cannibal would not have been less successful in his action had you excuse the one counterfactual logical the consequence is an immediate When survived. heartless the victim be true and the distinction between foresight and intention may well disappear. cannot views I repeat once more that my 139. here is rather rough. It also relies on should argument section. next the in of which will be considered some shared Regan, by not
67 1218 REVIEW [Vol. 62:1153 LAW CALIFORNIA SOUTHERN CONVENTIONALISM AND B. INCOMMENSURABILITY I Like social forms, social practices, are essential think Regan, that of many options. Like him I am not a con- the to availability valuable neither social all existing believe practices estab- ventionalist, since I that that valuable activity or relationships, nor of the support or lish forms a pursuit value put on a social practice or activity by Yet, its is as value. and that connection Regan values the social believe I recognizes, between than it is forms to him. I am unable to explain the is closer according reasons this view here, but let for indicate some of its me briefly essential features. that our historical knowledge sets the limits to the imagina- I think that ble, our and the practices set limits own to us. feasible is what for do not By that we can only imagine what has already hap- that I mean that we can only act as others around us do. I do pened how- nor mean, that can only imagine by relating to practices we know of, and ever, we constructing on variations them. for invention is quite The scope wide, of but we stray from forms further pursuits that we know a the away deal about historically the less concrete, the less rich detail, our good become, imaginings therefore, the less relevant they become to what and can do. we consistent is that there are universal moral princi- with This holding as not recognize that these universal principles do long enable ples, so we us to find new out radically about values ways unfamiliar and or of pur- Humor furnishes a familiar example. suing may have a good them. We identifying humor. It is still the case that we cannot principle good unfamiliar discover of humor. When we radically a new invent forms quickly its forms of humor, we may and learn to see that culture, special include many good examples of humor, i.e., examples which are theirs by previously good available principle. Yet, there was no way in our we could discovered their type of humor, except by discover- which have culture developed it. the that ing that the same goes for forms of art, I family rela- believe friendship, hobbies, tionships, professions, and other valuable relationships and pur- This coexistence of universal principles with suits. on dependence contingent traditions seems to me to indicate that social forms historical valuable more the availability of determine opinions. They con- do than them. Regan, who generally rejects stitute view, betrays its force by this saying "perhaps no really that comprehensive goal could be complex
68 FACING 1219 UP 1989] 1 invented .by individuals," two one " or expected have would one where discovered." be does not make sense to think of him "could say just It to activities or relationships, valuable of new completely discovering forms developed with though emergence of new social new ones can be the practices. believe that new valuable relationships or activi- course, of I do not, "invented" be can ties move and either, I here from emphasising primar- the imaginable to considering the boundaries of the ily limits of the 14 2 pro- practices. emerge Regan emerging to with feasible.41 They have simple comprehensive goals can be invented tests one or that at least by in this he misses two saying points. But individuals. two fundamental that the density of texture that I relied The in the arguments he first is on is to be understood in terms of complex rules for multiple objects to not relates to difference between a blue print (say only. eventualities It the and performance concrete enactment (in the a play) of the the text of its two be simple, consisting of only very characters play The play). may few lines. It still calls for more concreteness than is laid each delivering a blue print. Should the line be delivered swiftly or in measured out in the be characters or trainers, should they shoes of the the wear tones, should different ages, should they be of the same educational back- age or same not? answers may be provided in Some blue print, but not or ground the be. Nor can one rely on a closure clause all that whatever is can saying mentioned the blue print is irrelevant. One would always be able not in to imagine changes dreamt which not were are, clearly and of which or as play in Hell, or during a space- the relevant, possibly, staging such as or Mars, outside walk taking place between two gods bearing the of characters. names the necessity, of always, We on shared prac- rely which extend far beyond the blue print to deter- tices and understanding relevant is what is not, what is permissible and what is mine what and not. invent shows that individuals cannot this a might that retort Regan as a blue print, but they can invent it new they go along, social form as But already changes the nature of that they are doing. time. over what Regan, supra note 63, at 1052. 140. See Though variations 141. ones existing developed can on be individuals. by necessarily indicate a lengthy process. The main not is the absence of 142. does This point does so as a function of the activities of design. many rather than created by What emerges the does mean that people cannot try to design not forms. This happens all the time. This design. new It that what emerges is unlikely closely to resemble the intention, and that in any case merely means becomes new valuable form of relationship available to people only after a practice is crystal- it a form that all one Until do is experiment, which is a distinct social time supported by lized. can practices and shared understandings in our culture. appropriate
69 1220 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA are experimenting. may do that, subject to the first point, i.e., They They that their by their is imagination limited knowledge, historical which all their variations. But they cannot follow a fixed forms the for basis follow This existing one. cannot is a crucial limi- form, they certainly an our be as independent of recognized invention, value for tation, must value is that of being except or experimental. These where the inventive values, they are inevitably parasitic on relatively stable are important but which the background for the experimenta- forms, form and independent of deviation, so to tion, the standard speak. an consideration of great additional here. Valu- is There importance to be capable of being that, must able capable of providing options, be for This means that they must distinguish between cor- reasons action. (i.e., rect for which they are a reason) and incorrect those action acts must else independent of our will, or demarcation it will actions. This be will, us. can invent valuable pursuits at we we are the guide not If the guided. Experimentation is still guides, so long as it is not possible on forms and amounts to finding variations on them. As I based existing we practices also have above, of experimentation remarked probably accepta- the designate imprecisely, of what is boundaries, which however in such activities. ble shackling of experimentation, The convention by by limits on the imaginable, to variations on existing forms, or to and of old can only be engaged in as a special form of activity, revivals ones, clearly parasitic established norms. which is on valuable not the availability of determine (and forms only social If other) constitute them, then the connection I argued for options, but also dependence of value on social forms and incommensurability between the This assured. indicates, though it does not conclusively is dependence possibility the prove, our ability to compare options that the depends on us our of which may "run out" leaving social with no nature practices, for comparison. grounds Regan, I too feel that our disagreement on the issue of value Like touches on the most fundamental issues on which incommensurability disagree. Unfortunately, them adequately will take us far we considering Like proper the present discussion. of Regan, I too the bounds beyond contribute a few inconclusive observations on will matter, merely the concentrating some of the points raised on him. 143 The argu- mine by concerning the importance of social ment indicates why I am not forms 143. two The issues I omit from my discussion will main interesting observations Regan's are on incommensurabilities, and on loyalty and commitments. My constitutive problem with main Regan's is that he does not appreciate comments an important consequence of belief based on that
70 1221 UP FACING 1989] convinced even if that saying right is Regan that in of variety large "the and can be seen to share activities think are relationships valuable we help explain their which features, common certain to and commensurate the support commensu- limited only offers prospect this value,"' for of forms these manifested rability. which in are concrete the Since values depend conditions, on contingent historical be derived cannot and from form of the of value abstract the statement the value, each general social practices prevalent, in a depends which for its meaning on the way valuations the basis of the defies any attempt to commensurate on abstract features only. important even if all our to Regan happy is say that Similarly while taken in light of decisions concerning major life choices are evidence justify that the chosen option is a belief to sufficient not is which either the rejected ones, nevertheless in principle this is the or as good better as constitute options this does not seem case. If social practices valuable seems more that there is a general possibility. inviting an such It likely of our what is actually the and beliefs tie between the general features tie. It leaves room for case. and mistake on It is not very tight ignorance both of part the and groups. But it individuals is enough to indicate that the general conditions epistemic features of general with correlated are conclusions. ontological indeterminacy reflects General the epistemic incommensurability of values. main The Regan difficulty the has with of idea incommensurability explain the difficulty people have in making choices that it fails is to among allegedly incommensurate tendency their and options, believe to 14 5 with the choice. that If continued options deliberation may help the many options is that what would appear to those who believe in the incommensurability of particular two as doing fungibility total ways just of exchange (e.g., thing same the in an kind, or in money, or or money doing a job out of town your obtaining a house in the of presence friend to make foregoing exchange for a promise not to communicate month) be with the friend for a will moving as regarded communsurate the incommensurate. the from to Furthermore, my view on constitutive incommen- the that these incommensurabilities depend on existing practices and surabilities is based on premise by changing be can They attitudes. shattered practices may (it attitudes and come acceptable to be way commodity a it for cash or other benefits the and we sell our old as friendship regard to sell will be a change in the nature and cars). of friendship, as we know it. That This, I argued, meaning is constitutive incommensurability. But to make good these claims I have to make good is why it a the claims social forms, and much else besides. importance previous my about of 63, 1060. note at supra Regan, See 144. two options are 145. then knowledge that one is more Regan's argument that if incommensurate pursuing one than in trying the other cannot resolve the incommensurability likely to succeed in be me on a mistake. Incommensurability, as discussed by me, holds primarily seems to to based only includes between option-types. A concrete option and between concrete options, secondarily better to obtained. success of one thing may be be than a certain amount of of degree the More
71 1222 SOUTHERN LAW REVIEW [Vol.62:1153 CALIFORNIA recognized are incommensurate, to be would that put not all to end an deliberation lead and an to easy decision? This is considera- of a matter importance to ble any view includes which human of life a belief in the important incommensurabilities, such mine. as Indeed it is a large part of purpose the of such a view radically to aspects some reform a of com- mon philosophical way understanding to deliberation. Many philosophi- 46 deliberation.1 of view intellectualised excessively an take discussions cal is It regarded as a exclusively matter of puzzling out the correct answer to questions entirely soluble through fact-finding reasoning. and Once the answer correct believed is to have been teased agent out the simply endorses will, it. The may put if I it the this, like is stamp rubber of Admittedly, sometimes reason. then the the will rebels, but irra- is agent erratic. tional, All this seems misguided. me to profoundly delibera- The process of leading to tion decisions is primarily a matter resolving of to undertake refrain (or to action, some from) course or of action. The primary object is the determination of the will. play Reasons part an important in the process. They superiority indicate the some of options over This others. is part the which is commonly emphasised to the exclusion all of else. But that is only of the story. part this Beyond still is there the business of to coming pursue to want one course rather than another, reasons where do indicate the not superiority of This either. process, being not purely a matter of reaching beliefs basis on the of evidence, cannot described be the using common descriptions reasoning of processes. a need We new phenomenological account to do it All justice. say can here I is that plays reason part in it a as well. We basis the choose on of gaining per- and ceived goods avoiding ills. process perceived The deliberation of aimed resolving at the will large is in measure matter of a contemplating the various and ills of the alternatives goods trying, and one's imagina- in tion, to the relate to light options in them. of Hence, deliberation and reasoning about the reasons for and against various options continue may long after one comes to the conclusion that (not be it consciously need reached) that the options are incommensurate. if less another, even the first is incommensurate of that with amount of other. the not all Admittedly degrees success or of failure are matters of more but many or less, are. 146. My view closer to the cognitivist is than analysis non-cognitivist ones. to can be But it seen as an attempt to due place to what is give true in both approaches.
72 1223 FACING UP 1989"] COLLECTIVE GOODS RIGHTS C. TO main is There issue one on disagree, and Waldron which I viz, the governments of legitimacy taking action promote to opportuni- valuable to discourage But before I come or dis- to and ties worthless bad ones. comment on some other matters of contention. 147 cuss that issue let me 14 not have individual rights My to col- claim that we do generally lective goods all an observation was first of many common feature a of to political theories, all those I was to familiar with, and common opin- 149 ion. My there that argument normally meant is rights such no are to 15 feature of our explain as If my explanation well as justify this thought." is no is to autonomy, for autonomy requires successful, then there right many goods. As Waldron correctly observes in the existence of collective regards he what his first criticism of my views as it on the matter, does that are no partial rights based on people's interest in not follow there book I the point in the following way: In autonomy. the put identify wrong a right against coercion, for autonomy is with It to example, right that hold and to coercion) (i.e., the right against as the of personal autonomy, all, or because defeating, of importance Many rights contribute to making other all, almost considerations. no short list of concrete rights is sufficient for autonomy possible, but provision The this purpose. goods of is collective many of constitutive the possibility very of autonomy be cannot it and relegated to a compared subordinate role, some alleged right with against coercion, 15 1 autonomy. of in the name to I let pass. In particular, Waldron is right that much issues needs will be said 147. Some more manipulation on before it can be fully integrated other views with was supporting the I my in book. also He say that I do right is to adequate have the state, not definition an of in is he though mistaken thinking have I made that one. I claimed to concerning some essential claims properties states, of of legal systems, of which (in spite of Waldron's and to the contrary) the even more so suggestion one. I never felt that I had a complete characterisation. But is true that I do not is Law Canon It of think is logically necessary for the existence of states or of municipal legal that use coercion since do believe that it is necessary given social conditions as we have them, and will systems. But I remain the future, the issue for so foreseeable the argument of the Morality does not affect Free- of writings discussed at some length in other dom. (especially in The Authority of Law, These are issues Practical and and Norms), texts which Waldron does not examine. in Reason For reasons, I think that only some of these collective goods are the subject of 148. independent But this a separate story. Cf. J. RAz, THE MORALITY OF FREEDOM, supra note 15, group rights. is the of group rights). (concerning at 207-09 notion 149. Similarly, legal recognise rights not systems do individual but there to collective goods, special reasons may be recognition why no legal legal no and be provided to enforcement should if exist at all. rights such they a similar train of thought, Denise Reaume has since identified a narrower cate- 150. Following which individual is even more counter-intuitive to assume the existence of regarding rights. gory it Individuals, 38 and Rights to Public Goods, Reaume, U. TORONTO L.J. 1 (1988). See Groups 15, RAz, MORALITY OF FREEDOM, supra note THE at 207 (emphasis added). 151. J.
73 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 62:1153 1224 Waldron's observation that the autonomy interest in is the founda- tion of autonomy-based some fully is rights in the recognised My book. there concern to was two avoid suggestions. false is One that rights those 152 "a it, puts Waldron are, as to autonomy,"' right since that would con- the vey false idea that there nothing is more to autonomy than what is by covered The right. the second false is suggestion that those auton- omy-based important more than are rights collective one's interest in any goods. Since many collective goods vital for are the possibility auton- of omy, providing them may be as important providing as rights. My of explanation rights of the non-existence collective goods to with the fact had to do that of collective goods provision the normally involves every the member of imposes and society, significant on burdens them.53 Waldron the to points that fact those people who to subject are the burdens are beneficiaries also the them. of But that is the beside point. that The fact I benefit from performing some tortuous exercises does not make performance their any less burdensome. He has a better point when to the fact that he alludes the whose contrib- people actions the ute collective to contributing often are goods do to They happily it. regard not their contributions as burdensome, the contri- therefore and butions are not burdensome to them. This subjective, attitudinal, element in the burden of notion a sug- me that gests to I could have my words chosen more carefully. I did try ward to off the of misinterpretation danger referring to by "potentially 1 5 burdensome But duties." more clearly successful was I I when the to lack of referred impose to justification duties on the bulk of the population which matters in deeply affect lives, their which or affect 55 aspects important lives.' of their The that fact the duties affect bulk the the of population matters here, as does the fact behaviour called that the for affects in important one's life aspects. Waldron, Autonomy 152. Raz's in Perfectionism Morality and CAL. of REV. S. 62 Freedom, L. 1123 1097, (1989). objects Regan 153. that given my understanding of rights not am to I entitled considera- on rely deriving tions from the weight for the of reasons right. points out that He on my view rights give rise to and duties duties, are weighty not necessarily is reasons. That indeed my but view, I believe of the that weight the reasons underpinning related is a duty to the nature of the countervailing to be reasons likely encountered the on which the duty on occasions be If the to performed. is reasons act are likely for the overridden on be to all, or most, occasions for performance its then we not call a duty. will it observation This is a very rough only approximation of on the truth this I agree with matter. Regan, and with Green, what I had that say to the nature on duties of generally is far from satisfactory. 154. J. THE MORALITY OF RAz, FREEDOM, supra 15, at 247. note Id. at 203, 247. 155.
74 1225 FACING UP 1989] not it does way, required the in behaving from benefit myself I if But Waldron and as does, it sure be To me? it of to require easier it make behave to duties have people that in saying difficulty no have I observes so that others rights have they whether is question only The way. in that The right-holder. the of interest the on based be to has A right behave. the or on it, to subject the person of interest the on based be may duty 1 56 Waldron's of third the to us brings This large. at world the of interest it then individuals all to common is interest an when that says He points. of talking justifies also it it, respect to duty a recognising only not justifies sufficient a be would individual single no of interest if the even rights, inter- on the based are that rights is view own My right. for a foundation 5 7 the right-holder. of est carefully be must which the argument in twist is an important There depend may interest right-holder's the of importance The to. attended state important is why That others. of interest the serves it way the on serves them Protecting protection. special to be entitled may officials also is at large population the of interest the so doing in but interest, their tried have I me. protecting by served not is it which in way a in served, 1 58 not respected indeed are rights constitutional basic that show to but severally, interests right-holders' the serve they because merely the to protect serves interests individual's of one the protection because his in raises Waldron problem the solves This well. as of others interests right the between connection crucial the up giving without criticism third argued, also have As I right-holder. the of interest individual the and commonly are goods in collective individuals of interests the however, beau- enlightened, cultured, an artistic, in interest Your kind. this of not my serving alongside served is environment desirable otherwise and tiful, That my interest. serves it because served is not it but interest, similar yours. serving in instrumental causally not is served being is interest my in instrumental is causally expression free in interest my protecting But yours. protecting INDIVIDUALISM MORAL D. about to say have I what with disagree exactly not does Waldron non- a designate term to the I usurped that he thinks but individualism, is the target that to suggest little a saying in brief be will I target. existent autonomy- are there that claim consistently cannot I that allegation Waldron's Hence, 156. are there above, out pointed I as Besides, misconceived. is autonomy to right no but duties based autonomy. to right a not just is There rights. also autonomy-based at 247-48. 15, note supra FREEDOM, OF MORALITY THE J. RAZ, See 157. 230. at id. See 158.
75 1226 [Vol. 62:1153 LAW REVIEW CALIFORNIA SOUTHERN enough. real "moral individualism" I defined this (conceding that is stipulative a definition) partly only "that view the as of individual states 59 or human beings of aspects their lives, can be intrinsically valuable."' Something is intrinsically valuable if and value not derive only if its does its from entirely or (actual consequences, likely) nor from consequences can it be bring Among used to about. others philosophers, people, and individualism I know moral whom either in this sense is accepted the constant temptation. This view not surprising. If people are what or a is it does matters, not follow that only states of can be those people non- good? instrumentally many Moreover, a mental believe people in moral version state of individualism. only They people's believe that non- mental states can be instrumentally they since valuable regard people the well-being of to con- sisting of and in mind their states attitudes, with be they equated happi- not. ness crucial point is that it seems paradoxical to many that or The may people be unaware well-off If of but this. for impossible is it people to be unaware that well-off, they that their are or are, lives intrinsically, them for bad (for course people may of unaware that their lives be are bad their country, their relations or for human culture, etc.), then for conscious mental only attitudes or can states have non-instrumental value. intrin- that autonomy is in counter-argument showing My consisted valuable, sically goods are essentially and that collective constituent parts autonomy. of collective It follows that states of goods (that is, society) good. intrinsically are think of the We should good as an life having essential, non-instrumental, component, social in certain as being a life environment, and, of the goodness something course, as the of which agent may unaware of. himself be to to seem be important me These and points. Waldron controversial that this is an empty thinks proof because, I have first, only collective shown goods that are non-instrumentally not they are that good, and, good in themselves, second, not deny do I goods that collective only are they good because the to contribute well- people. being of suspect I there are very few that which are things in good them- Something selves. in itself if it is good is good else is the case. whatever must be good even in a world It post-nuclear devastation, in which of people subject to horrendous diseases, fears and are or it must traumas, 159. Id. at 18.
76 1227 UP FACING 1989] existence of some people con- very a in world in which the good be even perpetuation of afflictions on the rest of humanity, to the tributes great most survive such tests. Certainly, things that I suspect on. so and few in one's career, leisure success normal life, be they our of joys the of such tests. Most of like, fail of existence, and the joy very the pursuits, that is contexts. There surprise no goods certain in good are intrinsic the which contribute to autonomy. of true goods collective is the same the autonomy itself. is true of same fact, In the the is matters ultimately that deny course, of what not, Finally, do I was to show that The of my argument whole point of people. well-being position states denies that only viable of people are there is which this of people, maintains the moral significance yet good, intrinsically and led to the aggrandisement of, for example, and or states. I is not nations but that afraid am I finds unproblematic, view this Waldron am glad that not. will many others OF AUTONOMY THE VALUE E. as regard autonomy a univer- fact the that do not regrets I Waldron To universal a is it to think that value. reason gives he But value. no sal people that who lack personal must be the case value it a universal be good life. have a completely well-off, or completely cannot autonomy be of account well-being Aristotelian of version essentially my an I offered of worthwhile activi- pursuit it consists in successful according to which of one's aspects repression free important from of a in ties life personality. non-repressive be, societies, there and were, there can that I think enable people to spend and lives in worthwhile pursuits, ones which their them subject not are open to pursuits options the and their though even marriages custom, by be determined may choice. Careers individual to parents, child-bearing and child-rearing controlled only by arranged by few and traditional, and activities traditions, past-time sexual passion societies, In such rather than optional. required in and engagement them are chosen. There few people are friends not mobility, even little with death, to birth from they remain with, there in ever contact comes one the absence of see that them. I do with not get on and one just has to of excel- relations of human or the display diminishes the choice value leadership, and physical ability, spirit enterprise, technical in lence skills, encompassed which can all be or creativity, imaginativeness, scholarship, in such lives.
77 SOUTHERN 1228 LAW REVIEW [Vol. 62:1153 CALIFORNIA course, to Of succeed lives in one's such socialisation to has succeed, in the various pursuits wholeheartedly. But it is a one and engage must to mistake what think is is that chosen dedica- attract to likely more our what tion or involvement than Waldron course, is not. Of that feel may non-autonomous good as such lives be they could can be always improved they were also autonomous. if argued, however, you As I have just cannot add free choice, autonomy, is, that life. Auton- the to same we omy have is not something else. It on top of everything of aspect an is in our lives. the other values relationships, The careers, and pur- other our suits in societies partly constituted are that they have by the fact to be to be engaged in as they chosen be engaged. ought to The that fact were they part of what chosen freely is what them makes they into are. It makes to that a life sense say no than with autonomy is better same the life autonomy. Can one without any life say autonomy then that with is life without than better any to seems me it? This patently implausible. My the reply argument is in extensive of Freedom Morality (The ch. 13) the about incommensurability of alternatives. such this about the value of personal suspects modesty Waldron that injunction to protect autonomy provide the condi- undermines the and tions autonomy for all members of societies. of is true our This if only contemplates one of conditions, global a change advocates do as those of to a pre-industrial a return or to a post-modernist community, perpetual They cannot be revolution. rebutted by that in their saying peo- societies not have personal ple will have to autonomy. They the with resisted be simpler argument scale that social large design dark into leap a is the the only where certainty results will be totally the that is unlike what was hoped for. Normal relief, is politics, our to large with not concerned social design. scale to conduct Its business is our the within affairs existing, though part because ever-changing (in interventions) political of structures. social in normal means That that pro- and politics providing of personal autonomy is essential tecting the promotion the conditions to 6 0 individual of well-being.1 me mention here one 160. argument of Waldron's that I cannot stop to consider at Let other He that autonomy length. agrees only in used valuable valuable is if objects to my pursuits, but argument to explicit effect. See Waldron, supra note 152, at 1127. I pointed out that an autono- that mous, bad, demeaning, worthless life worse than a non-autonomous or is is bad, life which demean- in worthless or ing, similar Waldron's objection is based ways. analogy with virtue. But on an autonomy not virtue but a property of a life. a is is, does that property contribute The question to value of the life. the answer, to which we both agree, The that is it so only if the life is spent in does pursuits. This what I sought valuable is The which show. I used, and examples to criticises, he that show that certain activities are not even if bad autonomously They show that undertaken. undertak- ing autonomously them them worse. Neglecting makes child one's freely and autonomously is worse
78 1229 UP FACING 1989] 161 He is sympa- is made by Regan. enough point a Oddly related in societies which is valuable personal autonomy view that the thetic to of that makes nonsense he thinks that conditions, but certain to conform adequate with an individuals state provide should that the claim the of enough the if all or at least valid only point options. is His range of to all its members. always available society a are available in options for the movement if not most, of case. Much, the being from is far This to a desire make motivated by was centuries in the two last social reform Such all. aspirations some, to to available are open opportunities, which to be to available for all options are aspirations justified if they are not to each options be available is that enough required is that everyone. All that many this inevitably societies means In complex modem person. person must form be available to each realistically options than more can in mod- overlooks is that Regan What in society. the of pool options the to pre- as it must people, introduces socialization societies em pluralistic self- of and choice, of value the to life societies, those in them for pare social the of sense can make they only way the is That determination. range of options out that the If turns it them. surrounding structures is society, their in others to available unlike those them, to open actually 2 6 1 grievance. legitimate a have they restrictive, disablingly to seem not does and without real choice. Waldron neglecting necessity of out child one's than of argument. the aspect address that supra Regan, at 1081. note 161. 63, not is meant to apply to isolated book makes clear this argument the in discussion As 162. my not are autonomy-based. traditions which viable worthwhile, enclaves which maintain cultural id. assertion, his Contrary to Regan. raised by points two other on me comment a here add Let and valuable intrinsically is that claiming that autonomy in both no contradiction is 1084, at there they that to extent only the well-being to their are contributes autonomous people's that fact lives the autonomy of case the in is, be, and valuable can is What pursuits. intrinsically in worthwhile engage may it of and itself the good in other elements itself. Remove a good in as of constituent a valuable argument, tool" the that out "Clumsy right point is Regan to bad. even Finally, or turn worthless, of forms various of the use against extend not does Principle support Harm the of in at 1083, id. practical princi- it to sound a to meant was downgrade the principle of advocacy My manipulation. a As morality. of principle it fundamental as a regard do I action. not guide governmental ple to the to point to right it. Regan is recommend lot a is to principle there or practical, pragmatic mistakes, incom- governmental with concerns pragmatic receives from it considerable support a expressing as understood tool argument, clumsy the I think that insensitivities. and petencies, of princi- our and not as an argument in societies, about the concern of coercion operation practical the to support lends important further conditions, social sanitized some in about operation its ple principle.
79 1230 [Vol. 62:1153 LAW REVIEW CALIFORNIA SOUTHERN POLITICAL LIBERTY V. NATURALNESS THE OF A. PERFECTIONISM challenges Waldron contention that my perfectionism "natu- is the me therefore attempt to governments. the main ral" of stance Let clarify view. The view is, propositions us remind ourselves, leading to that let action. for are fair game governmental moral reasons principle in all that a term used to indicate that there "Perfectionism" no funda- is merely is inhibition mental principled acting governments on for any moral valid in many are on doing so strategic certain there though reason, inhibitions My view rests classes three propositions. of cases. on is logical point. That an act is a is a reason to do it, first The good state of that a affairs good a reason to bring is is Alternatively, it about. there or of affairs is good entails that state are reasons to do an a that act it about. Evaluations are connected it, reasons. Of course, or bring with that is good does not show that something ought to bring it fact the one may be other goods about. could bring about, and some may There one no important, so that one has a choice, barring the ability to bring be less of one as to which goods all should pursue. The good act or about them, or affairs also have bad aspects may consequences, or the good state of may be impossible to perform, or the good result impossible to bring act But about. does not make sense to say of a state of affairs that it is it but that is no reason whatsoever to do anything about it. If the good fact our value of their consequences is no reason for action, then actions of or there such be If there is a gap here, a is nothing to fill what can reason? it. say that what is needed Some the further claim that what is may is is for the agent. If something is just good, it certainly does not good good it that good for me. follow is a of civilians Saving crowd by throwing on a bomb which is about to go off and kill them is not good for oneself person his so sacrifices the life. Could he then say: It is good to who those save I have no reason people but so? this view there do On to are reasons except self-interested ones. Worse still, on no view the moral this reasons ever have are self-interested people One can never only reasons. to save an endangered work because the species of of their preser- value it never donation to a charity because a will help the needy, vation, give contribute to the preservation of Venice because of its cultural never All value. reasons are self-serving and one's only concern is with one's that own The untenability of well-being. position has been argued one's
80 1989] FACING UP some- proposition: If the first to repeat it. Hence for me often too far to reason conclusive) necessarily a (not is there then valuable, thing is it. preserve or about it bring gov- guide should which reasons is the that proposition second The which and subjects, their guide should which reasons are the ernments prop- This realise. or to, to conform suited particularly are governments I of and Freedom, The of Morality Part of One the subject main osition is that governments argued I have Briefly, here. on it not expand will their to apply which is, those that reasons, dependent for act to ought main consid- two by is limited authority their that and anyway, subjects to is likely intervention their only where act should they First, erations. they do not likely is if than reasons those with conformity lead to greater more important is where it intervene not they should Second, intervene. get they should than that themselves for decide should subjects that their right results. the act should that governments propositions two from these follows It that they think to reasons special are unless there reasons perfectionist on it is where issues are there unless or such in matters, are incompetent they if even people ordinary with the decision leave to important more that is relying on I am proposition The third decide mistakenly. will restrict to cases many in act mentioned just qualifications the two while considerations perfectionist not rule out they do action, governmental that govern- with the view equated is not to be Perfectionism altogether. the costs. is It all at considerations all moral pursue always ments should be pursued should objective moral a particular not or whether that view or case, each merit of judged on the be question to a means is by legal the so-called as rule, general exclusionary by a not and of class cases, "neutralists" would have it. for can, legal arrangements proper that think to is reason There matters, personal into commercialism invasion of the curtail example, non-commer- on based adoptions legal for providing by parenthood, like unen- babies in transactions commercial making and considerations, cial love, are of brotherly cultivation like the goals, Other moral forceable. is Often it be self-defeating. only would which intervention, beyond legal take. to measures what but to not or intervene, of whether a question not head- a whereas good, do some can measures legal marginal Sometimes this In all counter-productive. be will the problem on attack legal long reach to machine political put in the can one of what trust question the The restraint. of deal good to a leads and large, looms results sensible "neutralists" that issues suited is to I claimed, approach, cautious same
81 1232 62:1153 LAW REVIEW [Vol. CALIFORNIA SOUTHERN as fair for governmental action. Non-discrimination and regard game legal intervention of where some problems desegregation are examples deal of harm. good can do a measures other whereas good, do some can In The Morality Freedom pointed out of I that the issues favoured judgment the they rule out involve that on and "neutralists" by issues value, that the two stem from a similar moral questions of common 16 3 right to root. Waldron is does refute all this not say that views which are roughly equally liable to make mistakes on deny that governments presumption I think that it creates a do that that is so. But fronts. both nothing Waldron does refute it. to Perfectionism natural position. is the not does that show But that "Neutralists" right. is it may have cogent to show that some arguments put forward in counter-arguments. I tried that not But I know of no general argument cogent. years are recent "neutralism" must be wrong. B. REASONS EXCLUSION FOR THE IDEALS OF turn, finally, to Waldron's arguments in support of the Before we ideals from exclusion of politics, like clarify my would I to a few view on for points, relevant in leading up to his final the pages argument Waldron somewhat misrepresents my position on a few issues. as I mentioned First, I above, not deny that do government most actions coercion on means as rely a ultimate of enforcement. I think, however, of in politics coercion that role the often is It exaggerated. is important to remember of effect the symbolic governments' pronounce- and ability to set their ments the national debate tone of the affect and the It national mood. also to remember is important ever-grow- that an proportion ing government is done business of its not using through its coercive powers, but through authority intervention in the econ- or its under omy the which apply to rules same other actors, while flexing its economic muscle to political ends. enormous the measures I supported avoid direct coercion for perfec- Second, causes. tionist that they involve The coercion fully on the be can justified grounds of protecting individual autonomy. and promoting simplest The coercive. of taxation. Taxation is example It is justified in my that is only inasmuch as it is useful for the promotion and protection of yiew autonomy for all. in deciding to use But how the revenue, tax govern- already performed ment, having coercive act on the main other grounds, prefer to should it to encourage valuable pursuits, say schools, public use 163. J. RAz, THE MORALITY OF See supra note 15, at 110-33. FREEDOM,
82 1989] FACING UP 1233 parks, sports facilities, preservation of historic buildings, provision of medical services, rather on than others, free say of supply pornogra- 1 phy. not am 64 I sure whether Waldron disagrees with position. this If I understand him correctly, agrees subject he to the distortion argument to which will we come below. Third, Waldron that is right more a much analysis detailed the of different ways which coercion in into enters governmental and col- action 16 ors its effects needed. is He makes some useful suggestions in this direction, for which I am grateful. He is, however, considering threats, whereas concerned I was with coercion, and coercive threats only. not Clearly, all threats coercive are as ones, his examples demonstrate. This helps discrepancy explain, to limited degree, a why he finds more coercion the in law I than do. There are many legal examples of non- coercive threats. my To it mind is important to remember, however, that coercive only threats invade autonomy, and are subject the particular to objections with which was concerned. I One issue side arising Waldron's here is denial my of suggestion that coerced are always acts either justified or excused. His reason one is that may "there be some which acts are never justified or excused by coer- 6 6 cion."' This seems to me true. But it is also true that in those cases I cannot I was claim that do coerced to Let what did. I that us assume one not should under any circumstances kill mother, one's and that such action is excused. never A person who threatened is with death unless he mother kills his and her kills cannot say that he was coerced do to so. This precisely is he because refused should have her kill to at the even cost own of his life. Finally, in examining the possibility resort to taxation of and subsi- in support dies moral of sound ideals, Waldron, wishing to isolate the issue, assumes that the or subsidy tax not is justified for redistributive reasons. But this misrepresents whole the thrust of analysis. my In my view, consideration of the protection and promotion of autonomy pro- vides the basic grounds which determine issues justice of distribu- and They cannot tion. be separated from them. Waldron's core argument for exclusion the ideals of that is govern- mental intervention usurps a decision which should be left to individuals. There is, course, of something left to individuals, namely, deciding which See 164. at 417-18. id. This, I would say, applies also to the tax on fox hunting example that Waldron mentions. See Waldron, note supra 152, at 1141-47. 165. See supra Waldron, note 152, at 1138-41. 166. Id. at 1144.
83 1234 SOUTHERN LAW REVIEW [Vol. 62:1153 CALIFORNIA options to pursue the after government interfered the in matter and affected odds the in favour of options some and others, against but that is wrong the decision for them. are They entitled choose to merits the on of the case, it as is free from government intervention. stands, As it the argument has a breath-taking generality. If valid it amounts rejection the to of authority. all All authority, if it legitimate, is decides on merits, the relying on dependent reasons, ones is, that which apply to its subjects, and takes action which changes initial the balance of reasons order in to secure better conformity that with initial balance than was likely but for the authority's intervention. If that is treating people like babies, manipulating or them, all then authority illegitimate. is 67 1 There is comfort no to "neutralist" the this in argument. What Wal- dron needs a is different argument which shows that certain issues are better individuals. left to cannot He on rely blanket a that claim all should issues left be individuals. to It is, of course, part of argu- my own 6 8 ment that certain issues are better left to individuals.' there But no is argument I know of, and none that Waldron provides, to explain why the pursuit by political means all of ideals should be banned on this ground. The implausibility of the argument its in sweeping generality is made plain by underlying its presupposition that all options have an intrinsic balance merits of drawbacks and which should guide agents who choose them. That assumption seems necessary if we to say, are with Waldron, any that authoritative intervention distorts the "true" bal- which ance should guide choice. But authoritative if interventions can effect such distortions, so, presumably, can interventions. other a mul- If timillionaire buys all tickets London to all concerts and then offers them for twenty-five at sale a percent discount, his action does not differ much from governments offering a subsidy to music promoters in exchange for reducing the price of concert tickets. So presumably multimillion- this is aire us a doing disservice and should desist. imagine Now that as a result of political persecution a large number Hungarian of musicians flee London to where they willing are appear to lower for wages, resulting in a 25% in drop of price the concert tickets. Is this also a distortion of the price true music? of Waldron's argument relies on a notion of intrinsic merit and demerit is which independent of social conditions, and which in most cases is hard to Alternatively, sustain. he must to point some 167. My own reply to Waldron's argument is in Part of The Morality One of Freedom. See J. THE MORALITY RAZ, OF FREEDOM, supra 15, note 23-109. at 168. The choice of their friends the hopefully was uncontroversial example gave I in the book. See id at 57.
84 1989] 1235 FACING UP governmental reason why always interventions are while wrong, other This are implausible. changes also social not. seems For myself, I believe very there that often what is no way of saying authentic, is the uninterfered-with or natural, advan- balance of costs and it But sometimes possible to say that one balance of tages. even then is costs and advantages is better others for than be in who people the might other one or the of situations. the contemplated where situation A parenthood is crippling financially things is worse, other being equal, than one not. When this in which it is is should, governments case the if they effectively and can do so adverse without other, serious conse- to better situation. quences, the facilitate act been This has at a tedious long, and times saw no way of I article. acknowledging of the many the force addressed penetrating arguments against in assembled the me articles to other deal try here than and with them I could. of as as many to Before I started, I hoped advantage take opportunity this of and discuss some critical arguments against some of which my views appeared end, the the elsewhere. In task was so great not even manage that I did other some consider to arguments advanced elsewhere by contributors Issue, despite to this their to argu- affinity the pursued ments here. they It to disingenuous conclude look may by say- reading some of the ing my main worry is that they are far that in articles But in spite too many disagreements on some important generous. of I mean it. At issues, do time comments same the many short- pointed to my in and for that I am grateful. comings work,
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