Does Joseph Raz's Account of Law as a Legitimate Authority Run the Risk of Being Overly Authoritarian and Individualistic
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University of Southampton Student Law Review
Does Joseph Raz's Account of 'Law as a Legitimate
Authority' Run the Risk of Being Overly Authoritarian
and Individualistic?
Christos Marneros
Royal Holloway, University
ofLondon
Abstract
T his article presents Joseph Raz's account of 'law as a legitimate authority.' This
signifies that law must, firstly, be presented to the subjects as the view of the
legislator on how the former must behave, and secondly, the existence and the
content of the legal rules must be established by reference to their source in empirically
discoverable historical facts, such as legislation or judicial decisions, and not with
reference to moral considerations. Furthermore, the article discusses whether such an
account tends to be authoritarian and individualistic. It is advanced here that many
aspects of Raz's account - particularly those dealing with the normal justification thesis
- render his approach inadequate to justify a legitimate political authority and,
subsequently, create the danger of his service conception thesis turning into an
authoritarian and individualistic one.
Introduction
Joseph Raz states that the notion of authority is one of the most controversial
concepts found in the armoury of legal and political philosophy,' since it is
fundamental in any discussion dealing with legitimate forms of social organisations.
Historically, great theorists such as John Locke and Thomas Hobbes agree that
consent to political authority forms the basis of legitimacy and thus the subjects of
such authorities are under an unconditional obligation to obey the law.2 Raz, however,
holds that the issue of consent to authority is only marginal and secondary3 and
authorities, in fact, get their legitimacy from their service to a person's autonomy.
What follows from that statement, is that subjects are not obliged to obey the law
unless it serves their autonomy. The aim of this article is to examine the extent to
which such an account of law as a 'legitimate authority' risks being too authoritative
and too individualistic. The article consists of four sections. Section one describes the
account Raz provides about authority. Section two discusses his account of 'law as a
legitimate authority'. Section three discusses whether this account can be too
authoritarian and too individualistic. Finally, section four concludes.
' Joseph Raz, The Authority ofLaw (2nd edition OUP 2009), 3.
2 See for example, Thomas Hobbes, Leviathan (Penguin Classics 1985) and John Locke, Second
Treatise on Government (Hackett, 1980).
3 Joseph Raz, 'Government by Consent', in his (eds.) Ethics in the Public Domain: Essays in the
Morality ofLaw and Politics (OUP, 1994), 339.
1
[2017]
Vol.7](ViewImageLocal?handle=hein.journals/sthmpstul7&div=5&collection=&method=preview&ext=.png&size=3)
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Does Joseph Raz's Account of Law as a Legitimate Authority Run the Risk of Being Overly Authoritarian and Individualistic
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