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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