Fall 2021 Colloquium Series - 24 September
Stefan Sciaraffa, McMaster University :: Legal theory and the legal point of view
Friday,september 24 2021
Abstract: Raz argues that from the legal point of view, whether a norm is a legally valid norm of a particular political community turns on whether it satisfies the criteria of legal validity accepted in common by the community’s legal officials. Raz’s theory of law forefronts this legal point of view of the law. That is, Raz’s theory joins the legal point of view in the claim that the laws of any political community are all and only those norms that satisfy the criteria of legal validity accepted in common by the community’s legal officials.
Here, I raise an objection to the central role that the legal point of view plays within Raz’s theory of law. This objection analogizes the legal point of view to the logical concept “tonk” that problematically licenses the inference that A & B if either A or B is true. According to this objection, Raz’s legal point of view problematically licenses the inference that the members of a political community have first order and exclusionary reason to conform to the set of norms N if N satisfies the criteria of validity accepted in common by the system’s officials. In short, the objection is that Raz’s theory of law borrows its account of the conditions of legal validity from a tonkish legal point of view—i.e., a point of view animated and guided by a concept whose constitutive conditions of application (to norms satisfying conventionally accepted criteria of legal validity) cannot sustain its constitutive consequences of application (the inference that those norms enjoy first-order and second-order exclusionary reason-giving status).
I consider two responses on Raz’s behalf. The first is that the legal point of view earns its central place in legal theory by dint of the sociological fact that legal officials’ practice is regularly animated and guided by the legal point of view, irrespective of its tonkish nature. I reject this rejoinder. The second is that the legal point of view’s tonkish nature is not problematic, for the concept earns its role in legal theory by dint of serving as a kind of aspirational ideal for legal officials, and the concept can play this role irrespective of its tonkish nature. I endorse the second rejoinder, and I enumerate a number of this rejoinder’s implications for legal theory. Perhaps the most important of these is that a key line of jurisprudential inquiry concerns the reconstruction of a concept involved in legal practice qua a kind of aspirational ideal but not necessarily qua regular, animating guide for the participants in legal practice.