No Place for Law as an Ultimate Justificatory Reason: Revisiting Raz’s and Waldron’s Accounts on Justification in the Legal Field

Abstract

The analysis that I undertake in this chapter is primarily intended to highlight a persistent problem. It is still not yet clear what justificatory reasons judges and ordinary addressees are required to provide for their decisions and actions in the legal field. In formulating my argument, I draw upon two theories of law that argue that to understand law it is necessary to give an account of its practical relevance, which is not possible without showing the moral value that it realises. However, both approaches concur that any conclusive justification presupposes a normative choice that goes beyond what is prescribed by law. These are the theories of law developed by Joseph Raz and Jeremy Waldron. In this chapter I want to assess the extent to which their insights regarding the practical relevance of law remain compelling once we take into account the nuances each one incorporates into their respective accounts of law.Both theories share some common metatheoretical commitments that allow us to read them as engaged in the same theoretical enterprise and as having meaningful disagreements. To begin with, they seek to give an account of our concept of law. Raz explicitly states that the purpose of his theory is to articulate our concept of law, ie, the one configured by modern Western society. Waldron mostly pursues giving an account of democratic law. However, as modern Western societies are typically committed to democracy, for the purposes of this chapter, I will assume that there is no significant difference between them regarding their theoretical enterprise. They concur that our concept of law presupposes the unity thesis. This is the thesis that there is an ordered system of reasons of different kinds, including aesthetic, religious, moral and so forth, and that, in case of conflict, it is always the same kind of reason that prevails: the moral one. They agree that legal reasons are a type of moral reasons. The significant divergence between them appears to be the way they conceive the moral value that grounds law. I will argue that this divergence does not prevent them agreeing that the possibility of conclusively justifying in the legal field exclusively on legal (moral) reasons is not available, not only to judges, but also to addressees who want to retain rationality. It is now interesting to note how both theoretical approaches coincide in that law, as constituting a particular type of moral reasons does not provide in any case the ultimate criterion by which to judge particulars, as a constitutive element in the way in which we (as rational human beings) are committed to think about law.