John Gardner (University of Oxford – Faculty of Law) has posted How Law Claims, What Law Claims on SSRN. Here is the abstract:
In this paper, written for a volume on the work of Robert Alexy, I discuss the idea that law makes certain distinctive claims, an idea familiar from the work of both Alexy and Joseph Raz. I begin by refuting some criticisms by Ronald Dworkin of the very idea of law as a claim-maker. I then discuss whether, as Alexy and Raz agree, law’s claim is a moral one. Having arrived at an affirmative verdict, I discuss the content of law’s moral claim. Is it, as Alexy says, a claim to moral correctness? Or is it, as Raz says, a claim to moral authority? (An appendix examines Oliver Wendell Holmes’ judicial work to show that, pace Dworkin, Holmes does indeed make moral claims for law.)
And from the paper:
As Raz makes clear . . ., claiming that law has
moral authority is consistent with believing that it does not. It is
also consistent with having no morally favourable attitude
towards law.11 It is consistent with regarding law as a joke or a
racket or a scam. That is because, as well as being capable of
being true or false, claims are capable of being sincere or
insincere. A charity worker and a confidence trickster may
equally claim to be helping the poor. Perhaps neither of them
actually helps the poor; perhaps both of them make a false claim.
But only one of them makes an insincere claim. The same crosscutting
distinctions may be drawn where the claims of lawapplying
officials are concerned. As well as classifying their claims
as true or false, we may classify their claims as sincere and
insincere.12 So it is no objection to Raz’s view that Holmes
doesn’t believe that law ever creates moral obligations, or doesn’t
have a positive moral attitude towards any law. This leaves the
possibility that Holmes brazenly (because insincerely) claims
otherwise when he sits on the bench. If asked why, he might say:
‘That’s how they pay me to talk. I’m only doing my job.’
And:
[W]e can see at once why Raz renders the moral claim of
law as a claim to moral authority, not a claim to moral correctness
or a claim to justice. It is because legal officials often speak as
Goff speaks, and accept that they are morally bound by some
prior exercise of the law’s authority – a statute or a previous
judicial decision – while challenging the justice or other moral
merit of the exercise of authority in question. There is a sense, of
course, in which a claim to moral authority always incorporates a
claim to moral correctness. It always incorporates a claim that
those subject to the authority would be acting morally correctly
if they were to submit to the authority and do its bidding. Thus
Goff LJ naturally represents himself as acting with moral
correctness in following Lord Diplock’s rule. This, however, is a
red herring in the present context. For it is consistent with Goff
LJ’s denying that Lord Diplock acted with moral correctness in
creating the rule. In other words it is consistent with denying the
moral correctness of the law itself, and hence denying law’s claim
to correctness. Indeed that is the point: moral authority is such
that abiding by it is morally correct even though the exercise of it
was morally incorrect. Authority may bind one morally to do
certain things that one should never have become morally bound
to do, for of any moral power it is true that its valid exercise does
not depend entirely upon its correct exercise.
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