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Book Review: Raz’s Between Authority and Interpretation

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  1. Thanks for the review. Of course there’s much one might choose to discuss here but I’ll limit myself to the following, and only in a cursory fashion at that:

    “He shares with Rawls and Hart something like the idea that we can have a free-standing (non-moral) consensus about what is essential to our society.”

    I doubt Rawls’s notion of a political conception of justice as “freestanding” was at all “non-moral,” indeed, it depends in a fundamental way upon the notion of “free and equal persons,” a moral conception that is, at the same time, for Rawls, part of “our” public political culture. Freestandingness, as it were, refers in this case to the capacity for elaboration independently or apart from what Rawls understood as a “comprehensive” (world-) view (it’s of course arguable that people subscribe in any strong or philosophically consistent sense to fully comprehensive doctrines). As Gerald Gaus reminds us, this does not mean that a freestanding conception can exclude religious, philosophical or moral beliefs as such, only that such beliefs can make sense apart from the various larger worldviews in which they may be embedded (e.g., we can make sense of the notion of someone’s belief in God without reference to a particular theistic tradition in which it may be found, as was the case, for instance, with deism among the ‘Founding Fathers’), that people of varying worldview conceptions may express a commitment to a moral belief, understood at a particular level of generality and abstraction that serves at the same time as a political value in a manner that does not (necessarily) commit us to acceptance of the particular worldview in which it may be found or which fills out a particular meaning or interpretation or ramifies in directions that differ from this selfsame concept or belief in other worldviews (which is why, for instance, people of varying worldview orientations can come to endorse, say, the notion of human dignity that lies at the foundation of human rights doctrine). The scope of the political here can embrace the moral provided the latter is properly constrained by “the reasonable,” a quality intrinsic to beliefs, be they religious, moral or philosophical, that can be relatively “freestanding” in this way, that is, endorsed without at the same time committing oneself to any particular comprehensive doctrine or worldview in which they may be found. Indeed, the political conception “is a moral conception worked out for a specific kind of subject, namely, for political, social, and economic institutions.” The political conception is thus grounded in moral beliefs, here, on a conception of persons as free and equal (not to say reasonable or rational), and therefore justice as fairness insofar as it accords respect to this moral proposition. Reasonable persons subscribe to these beliefs in democratic societies, hence their minimal political justification, a justification that is further enhanced in a “fuller,” more explicitly public fashion, with the notion of an “overlapping consensus” that involves citizens reasoning from their worldviews or comprehensive doctrines to endorse this implicit political conception, hence the “shared” political conception of justice, as an implicitly shared moral belief AND a publicly justified conception as a consequence of an “overlapping consensus.”

    Similarly, with Hart, we must account for the fact that he “embraced what he called a ‘minimal moral content of natural law’ that provided support for both moral and legal norms in any society….” Larry May elaborates:

    “According to Hart, some legal positivists, ‘Hobbes and Hume among them, have been willing to lower their sights: they have seen in the modest aim of survival the central indisputable element that give empirical good sense to the terminology of Natural Law.’ The minimum purpose of survival is what brings people together to form societies. ‘In the absence of this [minimum] content men, as they are, would have no reason for obeying voluntarily any rules.’ On this account, the human need for survival, and the corresponding need for security, are facts that provide a natural basis, and perhaps a limit, for both legal and moral rules, at least as long as humans are vulnerable to attack by one another. The rules that Hart attempts to derive from this minimum content include requirements prohibiting killing and bodily attack, mandating a system of mutual forbearance, and respect for property. [....]

    [In short, Hart] talked explicitly of a minimum content of the natural law on which legal norms based their efficacy, although not their justification.” The efficacy here is what accounts for the criterion of legitimacy.

    With both Hart and Rawls, in other words, it seems the minimal political and legal consensus “about what is essential to our society” is not properly characterized as “non-moral,” but rather reasonably, minimally, or modestly moral

  2. I decided to bring up one more point:

    Legislation and adjudication can indeed be seen in some sense as reducing the scope and content of moral controversy through decision procedures (authorized by public reason) by which we resolve disputes about what is to be done in the light of moral and political disagreement. And Raz fully appreciates the sundry virtues associated with this. But while the law can thereby tell us what to do, i.e., for instance, create legal duties and obligations, the reasons for same cannot be merely practical ones (cf. ‘success’ above), reasons that are merely in our interest to believe, apart from whether or not they are true or well-justified. I would think the law’s legitimacy is dependent on our perception that it is, in some measure, grounded in right reasons, that we accept the law on epistemic not just practical grounds, hence law’s “reason” is not justified or legitimate based solely on its provenance (e.g., legislation) but also in the fact it is truth-tracking or truth-sensitive in some manner, as Gaus explains with regard to a similar idea in Hobbes:

    “We believe things because we believe them to be true or well-justified—belief is truth-centered. If so, we cannot accept the sovereign’s reason as right reason just because it would serve our interests to do so, unless we somehow deceived ourselves—tricked ourselves into thinking that we followed his reason because it was right, when in fact we do so only because it is useful.”

    On this account, public reason can never be wholly severed from private reason (‘individual moral reflection’) even if the former (as ‘public’ and ‘collective’) has the virtue of purging itself of the latter’s passions and biases.

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