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5 Ratio Juris 1 (1992)

handle is hein.journals/raju5 and id is 1 raw text is: Ratio Juris. Vol. 5 No. 1 March 1992 (1-22) copyright @ Roger A. Shiner 1992 Exclusionary Reasons and the Explanation of Behaviour ROGER A. SHINER Abstract. Legal philosophy must consider the way in which laws function as reasons for action. Simple positivism considers laws as merely reasons in the balance of reasons. Joseph Raz, as a representative of sophisticated positivism, argues that laws are exclusionary reasons for action, not merely reasons in the balance of reasons. This paper discusses Raz's arguments for his view. The Functional Argument provides no more reason for positivism than against it. The Phenomenological Argument is best supported by an account of how character traits function in explaining behaviour. But then the distinction between exclusionary reasons and expressive reasons is obliterated. Legal positivism cannot absorb laws as expressive reasons for action. Raz's positivism implies the correctness of an anti-positivistic legal theory. 1. Simple Positivism The general theme of this paper is the way that laws function in practical reasoning, or the way that laws provide reasons for action. I shall try to show that the most plausible positivistic account of laws as reasons for action fails; in fact, I shall try to show that such an account shows that legal theory must try to find a non-positivistic account of laws as reasons for action. I begin by considering the most straightforward account of how laws provide reasons for action, the account of what I call simple positivism. The account is as follows. Law falls within the scope of the practical. The fact that something is required or prohibited by law is a reason for action. That remark is intended as aseptically as possible; no avenues to theoretical analysis of how law provides a reason for action are intended to be closed by the remark. Perhaps the minimal way to conceive of laws as reasons for action is by the follow- ing image-a train bearing down is a reason for action for one crossing the railway track. Here, a whole range of goals is assumed to which the remaining on or fleeing from the railway track is related as brute means to

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