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Beyond the Normal Justification Thesis: Jurisdiction in the Service Conception of Authority Adam Tucker* INTRODUCTION This is an essay about Joseph Raz's account of the justification of authority. The centrepiece of this account, known as the "service conception of authority", is the "normal justification thesis":

"the normal way to establish that a person should be acknowledged to have authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly." 1

Attention to this thesis dominates critical analysis of the service conception. This is a shame, because the service conception is richer than this suggests. On Raz's own terms, meeting the requirements of the normal justification thesis is neither necessary nor sufficient for the justification of a claim to authority. It is not necessary because, as its title intimates, this is only supposed to be the normal way to justify authority. As Raz acknowledges, "this way of justifying...legitimate authority...is not the only one" 2 . But neither is it sufficient, because a purported authority can successfully conform to the requirements of the normal justification thesis and yet still lack legitimacy. This flexibility has an important consequence for criticism of the service conception: the two most obvious critical strategies cannot, by themselves, succeed. The first critical strategy would be to challenge the service conception by pointing to an instance of apparently

* Lecturer in Law, Christ Church, Oxford and Research Student, School of Law, University of Manchester. This draft was prepared for the Jurisprudence Discussion Group, November 2007. I would warmly welcome feedback ([email protected]) but please contact me before citing! Thanks to John Coggon for kindly reading and improving an earlier draft of this paper.

1 2

Joseph Raz, The Morality of Freedom (Oxford: OUP, 1986, 53 Morality of Freedom 53

legitimate authority that failed to meet the requirements of the normal justification thesis. Such a challenge would be incomplete because the service conception admits the existence of legitimate authorities that are justified in some other way. To succeed as an opponent of the service conception, our first critic would have to establish not only that their example authority was legitimate, but also that the way in which it was justified, as opposed to Raz's way, was the "normal" way to justify authorities. 3 The second critical strategy would be to identify purported authorities that conform to the requirements of the normal justification thesis yet which we would deny are legitimate. But this challenge would also be incomplete, because there is more to the service conception than the normal justification thesis. It admits that there are apparent authorities that meet the requirements of that thesis and yet remain illegitimate. So our second critic would need to supplement their example with an argument that its legitimacy was not otherwise excluded by other aspects of the service conception. This second critical strategy, and those other aspects of the service conception, are the focus of this essay. Although it is common to encounter the criticism that the service conception casts its net too wide, I will argue that proponents of this brand of criticism have failed to account for the extent to which the service conception already accommodates their critique. I will consider two variants of this critical strategy. The first, exemplified by Kenneth Einar Himma, alleges that the service conception fails to conceptualise substantive limits on the exercise of legitimate authority. This variant fails; Raz has elucidated substantive limits on jurisdiction within the service conception of authority, albeit reluctantly and equivocally. The second variant, exemplified by Scott Hershovitz, alleges that the service conception fails to conceptualise procedural limits on the exercise of legitimate authority. This argument succeeds, but it loses its force because it is aimed directly at the normal justification thesis, rather than the quite separate jurisdictional limits of Raz's theory. Clarifying the jurisdictional aspects of the service conception allows us to see why Himma's argument fails, but it also exposes the real strength of Hershovitz's position. First, I outline the service conception of authority, and introduce the rudimentary objection that it has no limits beyond the requirements of the normal justification thesis (Part I). Next, I examine Raz's curious equivocation when elucidating the jurisdictional

3

Such an argument would presumably begin by unpacking what, exactly, is meant by "normal".

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limits of authority and argue that once they are properly understood, his conception of authority is immune to that rudimentary objection (Part II). Then I consider a more telling criticism, based on the value of democracy. This objection seems to be successful, and Raz's jurisdictional principle needs to be modified accordingly (Part III). I conclude by observing that this modification is warranted because the new, wider principle defines the conditions under which the service authorities provide is indeed a service.

I - THE SERVICE CONCEPTION OF AUTHORITY: AN OUTLINE AND A RUDIMENTARY

OBJECTION

As its label suggests, the service conception of authority claims that authorities are legitimate when they perform a service. And that service is mediating between us and the reasons that apply to us. As Hershovitz has noted, the normal justification thesis is "a mouthful" 4 , but its central insight is relatively straightforward; it simply divides authorities into those that make us more likely to do the right thing and those that don't, and legitimises only the former. Raz privileges two main ways in which a political authority can pass the normal justification thesis: "[T]he primary arguments in support of political authority rely on its expertise (or that of its policy making advisers) and on its ability to secure social coordination." 5 Both of these, expertise and coordination, should be understood broadly. In a narrow sense, the meaning of "expertise" is obvious. An authority with a sophisticated understanding of electrical matters, for example, can legitimately issue directives concerning electrical safety. But there is more to expertise than just knowledge, as Raz emphasises in his denial that authorities are simply "big Daddy who knows best". 6 Genuine expertise couples knowledge with the capacity to apply it properly, so an authority which is legitimate through its expertise is likely to be marked by its "steadier will less likely to be tainted by bias, weakness or impetuosity, less likely to be

4 5 6

Scott Hershovitz, Legitimacy, Democracy and Razian Authority,(2003) 9 Legal Theory 201, at 206 Joseph Raz, Introduction in Joseph Raz (ed.), Authority, at 6 Morality of Freedom 74

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diverted...by temptations or pressures" and so forth. 7 The expertise that grounds Razian authorities, as befits the service that they perform, couples their knowledge of the reasons that apply in their field with their capacity to successfully issue directives that reflect those reasons. Similarly, there is a risk that "coordination" will be understood too narrowly, created by the influence of what Raz calls the "artificially narrow sense of the term" employed in game theory. For a game theorist, a coordination problem arises when "there are several courses of action available such that each person will be best off if he pursues any of them provided that all (or the vast majority of) the others do the same". 8 But Raz employs a more relaxed conception of coordination. For him, "securing coordination means just that" and coordination problems arise whenever "without a coordinated effort, some good, which can in principle be secured at an acceptable cost, will be lost" 9 . This broad understanding of coordination "increases considerably the possibility that [people] will fail to realise that they face a coordination problem", and so the two key features of the service conception can meet: one way in which authorities gain legitimacy is by possessing the expertise to spot the existence of coordination problems 10 . With this outline in place, several observations can me made. We will revisit them at the end of the essay. First, it strikes me that the service conception is intuitively attractive, because of the way it ties the legitimacy of authorities to their ability to serve us. Many of the most obvious, instinctive objections to authority wither away in the Razian conception of authorities as people or institutions that perform a service for us and ultimately help us to do the right thing. Indeed, this is the aspect of the service conception that Raz harnesses to discredit Robert P. Wolff's anarchist claim that no authority can ever be legitimate. 11 Secondly, and famously, Raz's account leads to relatively sceptical conclusions regarding the legitimacy of real life political authorities:

7 8 9

Morality of Freedom 75 Authority 7, citing Lewis. Joseph Raz, Facing Up: A Reply (1989) 62 Southern California LR 1153, at 1190 Facing Up, 1192 Authority 11-12

10 11

4

"[M]y account has the consequence that political authorities are likely to have a more limited authority than...many, perhaps all of them, claim to have, and that people generally believe that they have." 12

In principle, of course, this is an empirical claim, and is independent of Raz's conceptual apparatus. We might like to disagree, and argue that real life governments do in fact typically meet the requirements of the normal justification thesis. But, especially with regard to expertise, this conclusion seems to be sound: if the service conception does spell out conditions for legitimate authority, then political authorities are less legitimate than they claim and than we commonly imagine. 13 Thirdly, the service conception has the surprising effect of making authority agentspecific, because it ties legitimacy to the relative expertise of the authority and the individual: "The authority of the state may be greater over some individuals than others". 14 To the extent that you and I develop expertise in different spheres, the government's legitimacy over each of us varies depending on the sphere in which it tries to exercise authority. I say this is surprising because it seems to conflict with the way in which the notion of legitimacy is deployed in daily political discourse. Consider, for example, the issue of the legitimacy of the government of Iraq. When this is discussed we are normally talking about some kind of general measure of legitimacy. Whilst we might be content to limit our enquiry to its legitimacy over the citizens of Iraq, it seems odd to suggest that its legitimacy might vary from one Iraqi to another, depending on their knowledge and expertise. At most, we would be willing to entertain the idea that the present Iraqi authorities are more legitimate from, say, the perspective of the Shia and Kurdish communities that that of the Sunni community. But Raz's conception of authority invites us to delve deeper still, as the legitimacy it deals in varies from one individual to the next.

12

Joseph Raz, The Problem of Authority: Revisiting the Service Conception (2006) 90 Minnesota Law Review, 1003, This might lead one to expect that the main source of opposition to Raz's account of authority would

at 1008

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come from those who argue that it doesn't legitimate enough rather than those, considered in this essay, who allege that it legitimates too much.

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Morality of Freedom 100

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Furthermore, the distribution of this agent-specific legitimacy seems counter-intuitive. It appears that the law's authority is at its weakest in electrical matters over electricians, in driving matters over licensed drivers, in pharmacological matters over pharmacists and so on. But this is deceptive and, measured against the combination of expertise and coordination, this apparent problem actually highlights the greatest strength of Raz's account. With regard to expertise, what authority the law lacks over electricians, it lacks because they, as experts, would do the right thing anyway. The authority lacks legitimacy because its service is not needed. Raz's account still has bite though as the law's authority over those who only think they are experts, but are not, is legitimate, and they ought to comply with its requirements. Drivers are a case in point. And even in an example like electricians, which seems to invoke the value of expertise, the coordination component of authority looms large. Consider for example, the safe choice of wiring gauge for the installation of a new kitchen. In part, this is a question of expertise, and the expert electrician has no need of an authority to tell him what choice to make. He can identify the safe options and make an informed decision between them. But there is also a coordination problem, because when another electrician is hired several years later to install new, more powerful appliances, his expertise cannot tell him what wiring is hidden in the walls of the house. Although he can surmise that it is sufficiently thick to safely supply the existing appliances, he cannot know whether it will cope with his new, more powerful ones. Unless, of course, the previous electrician's choice amongst the safe options had been specified by an authority. Then, our second electrician knows what gauge wiring there is (or, at least, there should be) in the walls and he can decide accordingly whether to use the existing materials or rewire from scratch. From the perspective of expertise alone, the electrician's expertise prevails. But we also have reason to coordinate our choice of wiring, so authority can be legitimate even over experts. 15 Explained like this, Raz's conception of authority seems vulnerable to a rudimentary objection. 16 It seems that there are no principled limits to the possible extent of

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For this reason, I think Timothy Endicott is wrong to agree with the "wise electrician" who reasons that

"he does not need the service that the law provides". He might not need its electrical expertise, but he still needs its coordinative assistance. See Endicott, The Subsidiarity of Law, 244-245

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It also seems vulnerable to many far-from-rudimentary objections: it is based on a controversial

objectivist metaphysics of morality and reason; it treats authority as something to be justified only

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legitimate authority. As long as the government can harness sufficient expertise, it can tell us what to do. This objection makes Raz's account of authority look impoverished, despite its depth and complexity. Kenneth Einar Himma captured this problem strikingly in the title of a recent article, "Just `cause you're smarter than me doesn't give you a right to tell me what to do" where he unpacks the objection as follows: "Construed as a sufficient condition for legitimacy, [the normal justification thesis] implies that there are no other limits of legitimate authority". 17 Adopting legal terminology, we might say that the rudimentary objection is that there seem to be no limits on the possible jurisdiction of legitimate authorities. In one sense, of course, the normal justification thesis is a "jurisdictional principle". But the jurisdiction it defines is particular to the authority in question, whose jurisdiction simply depends on the degree to which its attributes conform to the expectations of the normal justification thesis. The rudimentary objection draws our attention to the deeper issue of whether there are any general limits on the jurisdiction of authorities. Himma candidly admits that "there is, to my knowledge, no passage in which Raz addresses the issue of whether he believes the scope of legitimate authority extends to every requirement of right reason no matter what the topic". 18 If this were true, I think Himma's objection would be devastating. Despite Raz's protestation to the contrary 19 , the service conception would do nothing more than legitimate the spectre of big Daddy who knows best. But it is not true: there are many such passages in Raz's articulation of the service conception, and, as we shall see in the next section, they enable Raz to avoid the rudimentary objection. As I indicated in my introduction, Himma has no warrant to construe the normal justification thesis as a sufficient condition for legitimacy.

instrumentally; it is based on Raz's version of practical reason, which requires a rigorous, perhaps even slavish, devotion on the part of subjects who treat authoritative directives as "exclusionary reasons". I will not deal with these deeper issues here.

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Kenneth Einar Himma, Just `Cause You're Smarter than Me Doesn't Give You a Right to Tell Me What to Do: Just `Cause. 25 See text accompanying note 6, above.

Legitimate Authority and the Normal Justification Thesis, 22 (page ref is to OJLS Advance Access Version)

18 19

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II - MEETING THE RUDIMENTARY OBJECTION: THE RELUCTANT EVOLUTION OF RAZ'S JURISDICTIONAL PRINCIPLE Really, the rudimentary objection doesn't need meeting. Rather, we need to explain why it never truly hits its target to begin with. Although he has equivocated and downplayed the importance of the issue, Raz has consistently tackled the jurisdictional limits of the service conception of authority. As we will see, however, there is a marked evolution in the prominence it is accorded. Raz has presented the service conception of authority several times, and the jurisdictional aspect is far more obvious in his most recent statement of the theory that in his first. In the first version, the jurisdictional issue is dealt with as a low key "exception". In Raz's most recent work, the jurisdictional issue is dealt with in the form of a "condition" to be fulfilled alongside the normal justification thesis. 20 In this section I argue that we should prefer this most recent version; the service conception needs stating in terms that make clear its immunity from the rudimentary objection. The development of the service conception of authority can be divided, schematically, into three stages. At the first stage, Raz introduces and defends the model as a philosophical account of authority. At the second stage, he actually deploys his model in the course of wider arguments in legal and political theory. Finally, at the third stage, he returns to defending it as a model of political authority. At the first stage of Raz's articulation of the service conception, the jurisdictional aspect of authority is downplayed in remarkable fashion. It begins with the 1985 article Authority and Justification 21 , which was reproduced (in slightly modified form) in his 1986 book, The Morality of Freedom. 22 Here, the jurisdictional limits of authority are mentioned only in outline, and gestured towards in vague terms. Following the introduction of the normal justification thesis, the reader is cautioned that it must be supplemented by establishing "that there are no reasons against its acceptance which defeat the reasons for authority". 23 Raz outlines two categories of these potential countervailing reasons. The

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The "first" version referred to is Authority and Justification, Philosophy and Public Affairs, Vol 14, no. Philosophy and Public Affairs, Vol 14, no. 1, 3-29 Morality of Freedom Morality of Freedom 56

1, 3-29. The "most recent" is Revisiting the Service Conception, note 12, above.

21 22 23

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first, which we can discard for present purposes, is the presence of a competing superior authority. The second, is a "cluster of recurring considerations" concerning "the intrinsic desirability of people conducting their own life by their own lights". 24 The significance, source and scope of these considerations is left unexplored and even a careful reader could get the impression that this seminal presentation of the service conception remains vulnerable to the rudimentary objection until its very last sentence, where Raz concludes his defence of the service conception by dropping something of a bombshell ­ the normal justification thesis only applies when doing the right thing is more important than deciding independently:

"So far as this is done where improving the outcome is more important than deciding for oneself this acceptance of authority...is in fact the most rational course and the right way to discharge one's responsibilities". 25

Raz's next discussion of the service conception comes in his Introduction to an edited collection of essays on the concept of authority. 26 Here, the jurisdictional aspect is at least discussed in proximity to the normal justification thesis, where it is promoted to the status of "an important exception" and discussed in the same paragraph:

"My idea is based on the thought that whereas normally there is a case for an authority where compliance with its directives would lead its subjects better to comply with reason than if they were not to be guided in their action by that authority, this general rule has an important exception. It consists of all those matters regarding which it is more important to act independently than to succeed in doing the best." 27

This apparent embrace of "the exception", however, is somewhat shallower than it appears. First, this paragraph is only an anticipatory overview of Raz's own contribution to the collection ­ which is Authority and Justification, where the actual substance of his position, including the downplaying and distancing of the exception remains as described above. Secondly, giving the exception such prominence only serves to highlight that the

24 25 26 27

Morality of Freedom 57 Morality of Freedom 69 Authority. Authority 13

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service conception is, in an important sense, dependent on an underlying philosophical issue: on what matters is it more important to act independently than to succeed in following right reason? On this question, Raz remains apologetically silent, saying only: "I feel the need for a substantive account of this category". 28 At this early stage, then, the service conception is immune to the rudimentary objection. But only through the deployment of a rudimentary exception: conformity with the normal justification thesis legitimates authority except when it is more important that subjects decide for themselves. But as there is no discussion of how to unpack the exception, the objection is met only at the price of begging deeper philosophical questions. The second stage of the development of Raz's model comes when he actually deploys his conception of authority to support his position in other arguments of legal and political authority. There are three main aspects to this stage, and the contrast between their treatments of the jurisdictional issue is striking. First, in Authority, Law and Morality, Raz harnesses the service conception of authority in support of a defence of his "exclusive" version of legal positivism. 29 The detail of his argument need not detain us ­ suffice to say that he relies on his notion of authority in order to argue that it is not in the nature of law to contain evaluative tests for the validity of legal rules. The conception of authority he relies on is, of course, the service conception. However, discussion of its jurisdictional aspect is omitted entirely. There is no mention of "the exception" and no reference to the idea that authoritative directives can be legitimate only insofar as they apply to matters which it is more important to decide correctly than independently. In context this is understandable, as the wider limits of the service conception have no impact on the argument of the article. From a broader perspective, however, the omission is doubly unfortunate. First, it reinforces the ambivalence with which the jurisdictional issue is treated in the more abstract accounts where it does feature. Secondly, the opening section of this article is the shortest, sharpest and most accessible statement of the

28 29

Authority 13. Now reprinted in Joseph Raz, Ethics in the Public Domain (Oxford: OUP, 1994), at 210-237. It was

first published in the Monist in 1985

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service conception and, as such, is a widely read introduction to Raz's work on authority. Furthermore, this accessibility makes this account a popular target for critical analysis, which is thus aimed at a radically incomplete version of the theory. 30 Raz's second deployment of the service conception comes in support of a wider argument in political philosophy; that the role of consent in the legitimation of government can be only "marginal and secondary". 31 Here, however, the jurisdictional issue plays a markedly more prominent role as the argument develops. Raz acknowledges that the normal justification thesis will not satisfy an anarchist: "An authority is legitimate, it says, only if by following it one is reasonably successful in following right reason. What is left out is what the believer in autonomy cares about most, i.e. that one should decide for oneself...The doubt remains whether autonomy is consistent with handling over to the government the right to decide everything for us, even if giving it this right will improve our conformity with reason." 32 In order to meet this objection, "the exception" is promoted to the more positive status of a "condition" to be fulfilled alongside the normal justification thesis:

"[O]ur first condition of legitimacy [the normal justification thesis] has to be supplemented with a second, to the effect that governments can have legitimate authority only over matters regarding which acting according to right reason is more important than deciding for oneself how to act...But it seems that the two conditions are in themselves sufficient to show...that the governments that meet them are...legitimate." 33

The third deployment of the service conception is in Liberty and Trust, an article whose central thesis is a denial of the legitimacy of moral paternalism. The general theme into which this fits, the limits of government, provides a particularly appropriate arena in which to explore the limits of authoritative jurisdiction. In this context, Raz again gives his jurisdictional theory increased prominence. Governments that meet the requirements

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E.g. Himma (consistently, note XREF) and Sadurski (at least once, note XREF) both use ALM as their Government by Consent, in EPD, 355 Government by Consent 365 Government by Consent 365-366

primary reference for the service conception.

31 32 33

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of the normal justification thesis, he notes, "are legitimate...only to the extent that it is more important that people should perform the `optimific' actions than that they should decide for themselves". This generates a distinct limit on the legitimate jurisdiction of the state: "governments should not intervene in those matters (say, the choice of one's friends) where it is at least as important that people should choose for themselves as that they should choose wisely". 34 And, in his most pithy acknowledgement of the need for a jurisdictional principle:

"Success in improving compliance with reason is not, however, enough to establish the legitimacy of government. It also depends on meeting a negative condition: that its jurisdiction does not run to matters regarding which it is better that people decide for themselves, unguided by authority than that they improve their compliance with reason." 35

However, the potential for this account of the jurisdictional principle to be considered a genuine contribution to the development of the service conception is stunted. Firstly, these comments are hidden within a quite separate argument about moral paternalism. Secondly, the essay is conspicuous for the absence of explicit reference to Raz's more formal articulation of the service conception of authority. It might deal in the basic idea that authorities are legitimated by their capacity to improve our conformity to reason; but nowhere are the terms "service conception of authority" or "normal justification thesis" mentioned. These latter two examples expose the partial nature of the account of authority Raz develops in Authority, Law and Morality, and so create a strong suspicion that dealing with the jurisdictional issue only as a low-key exception in the early, abstract formulation of the service conception was a mistake. When the service conception comes under pressure, or the expression of a principled basis for limits on governmental power proves particularly salient, the "exception" takes on an importance that Raz's equivocal approach to elucidating it seems to deny it. This is highlighted by the third stage in the development of the service conception.

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Joseph Raz, Liberty and Trust, in R.P George (ed.), Natural Law, Liberalism and Morality, (Oxford: OUP, Liberty and Trust 123

1996), at 119-120

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In Facing Up, A Reply 36 , Raz's response to symposium criticism included a reconsideration of the problem of the "countervailing reasons" that, at stage one, he had suggested could limit the legitimate jurisdiction of authorities. "I mentioned in particular the need that the matter (over which someone is said to have authority) is not one on which it is more important that people should decide for themselves than that they should decide correctly. This is meant to take account of the `intrinsic desirability of people conducting their own life by their own lights'". 37 True, but this argument connects the two, initially disjointed, aspects of this problem in a new way that was not clear at stage one. Initially, this had been downplayed; under critical pressure, the jurisdictional argument takes on a greater importance. Finally, in delivering the 2005 John Dewey Lecture in the Philosophy of Law, Raz took the opportunity to make a detailed defence of his conception of authority. 38 This lecture encapsulates the equivocation we have been examining. In the introduction, Raz again downplays his jurisdictional principle. Indeed, he appears to label as "moderate critics" of the service conception those who deny that the normal justification thesis expresses sufficient conditions for legitimacy. 39 This is odd. The normal justification thesis is not a sufficient condition for legitimacy as soon as the jurisdictional principle is acknowledged. So it seems that Raz himself - on those occasions when he adverts to this issue - is a "moderate critic" of his own service conception at the same time as actively deploying it in philosophical argument. 40 Fortunately he takes a much clearer approach in the main text. Here, in the most recent comprehensive exposition of the service conception of authority, the "exception" is no more; instead, the jurisdictional aspect of the service conception is promoted and given a label, the "independence condition", which must be fulfilled alongside the normal justification thesis:

36 37 38 39 40

Facing Up Facing Up 1180 Published as Joseph Raz, The Problem of Authority: Revisiting the Service Conception, note 12 above. Revisiting 1003 The characterisation of critics in the introduction is actually doubly confusing. It also implies that those

­ including, presumably, Raz himself ­ who deny that the service condition describes necessary conditions for legitimacy are "radical critics" and "reject the service conception altogether". 1003.

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"The suggestion of the service conception is that the moral question is answered when two conditions are met, and regarding matters with respect to which they are met: First that the subject would better conform to reasons that apply to him anyway (that is, to reasons other than the directives of the authority) if he intends to be guided by the authority's directives than if he does not (...the normal justification thesis...). Second, that the matters regarding which the first condition is met are such that with respect to them it is better to conform to reason than to decide for oneself, unaided by authority (...the independence condition)." 41

In the light of the gradual evolution discussed above, this change of emphasis is not particularly surprising. But interestingly, Raz does not acknowledge that this constitutes a change at all. And so, although the evolution from an occasionally ignored "exception" to the normal justification thesis to the "independence condition" which must be fulfilled alongside it is marked, it is left unexplained. So we are left to choose between with two rival formulations of the service conception which, in substance, lead to the same conclusions. We might say that it doesn't matter whether the jurisdictional problem is expressed as an "exception" or a "condition", because the difference is only rhetorical. But I think this would be a mistake. Rhetoric matters, and Raz's final version of the service conception is preferable to his early formulation even though they are technically the same. The difference between an "exception" and a "condition" essentially lies in the implied importance attached to the issue they embody: here, it is the difficult contrast between matters we should decide for ourselves and matters we should decide correctly. This strikes me as an issue that merits serious philosophical consideration rather than an issue that should be quietly ignored by demeaning it as an "exception". This is only underlined by the nature of Raz's equivocation on the issue: when the service conception was employed in support of political arguments, Raz needed to bring the exception out of the shadows and give it greater prominence than when he was only articulating, in an abstract manner, the boundaries of the theory. The strongest form of the service conception, then, adverts to the jurisdictional issue. It only legitimates authority when both conditions are met, and we should be clear about that from the

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Revisiting, 1014. The "moral question" referred to is this: "how can it ever be that one has a duty to

subject one's will and judgment to that of another?" 1012

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outset. Following Raz, I will use the label "independence condition" for his jurisdictional principle from now on. There is a risk that my defence of this understanding of the service conception will appear otiose. The independence condition, in one form or another, has featured in virtually all Raz's discussions of the service conception since its inception. And in his most recent comprehensive discussion of authority, Raz adopts the approach that I endorse. Given that the independence condition has in substance been there since the start, and Raz ultimately settled on giving it its due, have I done anything more than simply endorse the service conception? I think so. The rhetorical downplaying of the independence condition permeates the literature on Razian authority to the extent that it has disappeared from view: "the service conception of authority" and "the normal justification thesis" have become virtually synonymous for even the most astute commentators. Consider the following example. In order to develop his critique of the boundaries drawn by the service conception of authority, Himma construes the normal justification thesis as a "sufficient condition for legitimacy" and objects to the normal justification thesis on the grounds that it seems to entail that "a legitimate state may intrude into even the most intimate aspects of a person's life as long as it demands of its subjects what right reason requires." 42 But, as we have seen, this is a mistake. Himma concludes that "NJT is incompatible with the existence of any protected spheres of citizen autonomy". But there is more to the service conception than the normal justification thesis. In fact, when the service conception is fully articulated, the independence condition fulfils the vital role of spelling out just these "protected spheres of citizen autonomy": namely, those matters where it is more important to decide for oneself than decide correctly. It is tempting to surmise that this is a simple oversight: throughout this article, Himma's main reference work for the service conception is Authority, Law and Morality, where, as we saw above, the independence condition is entirely absent from what amounts to an abbreviated account of the service conception 43 ; and he confesses that he is unaware of any passage elsewhere where the issue is tackled. 44 But that would be too easy, and Himma's own explanation seems inadequate. Although Authority, Law and Morality is his main point of reference, there are

42 43 44

Just Cause 24 Above n XREF Above n XREF

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citations to Authority and Justification 45 , the Morality and Freedom 46 and Government by Consent 47 - where the independence condition, in one form another, does appear ­ throughout the article. And this is hardly Himma's only foray into Razian scholarship: he is such a prolific commentator on many aspects of Raz's legal and political philosophy that it is inconceivable that he has never encountered the various references to the independence condition in Raz's other publications. 48 The best explanation for Himma's failure to advert to the importance of the independence condition surely lies in Raz's rhetorical downplaying of its significance. Indeed, the enduring influence of this essentially stylistic point is strikingly captured by Himma's sub-title: he writes about "legitimate authority and the normal justification thesis" as if that exhausted the service conception's contribution to the subject. Himma is not the only commentator to overlook the independence condition. In the next section, we will consider in greater detail the arguments put forward by Samantha Besson and Scott Hershovitz that the service conception ignores the value of democratic decision making. 49 Still, we can note at this point that they make the same error as Himma. Their critique is effectively jurisdictional: it is based on the concern that the boundaries of legitimate authority drawn by the service conception are wrong. But both target the normal justification thesis rather than the service conception as a whole, or its jurisdictional element in particular. Besson moves from her "challenge for Raz's service conception" 50 to the claim that the normal justification thesis is "in need of thorough revision" 51 and Hershovitz describes his own project as an investigation of "Raz's account of legitimacy, specifically his normal justification thesis". 52 This elision of the wider service conception of authority and its narrower component the normal justification thesis in arguments whose real target is the jurisdictional principle appears inexplicable, until Raz's own equivocation on the issue is brought into focus. Over time, the service conception has indeed evolved to recognise the importance of the independence condition. But the damage was already done, as

45 46 47 48

Above n XREF Above n XREF Above n XREF Cite some other Himma articles. NB Their focus is usually the dependence thesis, and exclusive legal Hershovitz, above. And Besson. Besson 89, emphasis added Besson 97 Hershovitz 201

positivism, but they still establish a deep famililarity with Raz's work on authority.

49 50 51 52

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even Raz's most careful critics have been encouraged to overlook the jurisdictional aspect of his conception of authority, and their critiques miss their target accordingly. There is a certain irony in this state of affairs. One of the great strengths of Raz's elaboration of the service conception is his treatment of political anarchism, which can profitably be understood as a jurisdictional argument. The anarchist denies the possibility of legitimate authority on the grounds that deference to the will of another constitutes the breach of our duty of autonomy. 53 In the terms of the independence condition, this amounts to an argument that there are no matters that it is more important to decide correctly than to decide for oneself. 54 So the anarchist would conclude that the jurisdiction of a Razian authority is reduced to nothing. Through his use of everyday examples, Raz highlighted the absurdity of this stance:

"Surely responsibility for one's life does not require continuously deciding for oneself on every aspect of one's affairs. A person may with unimpeachable propriety decide to hand all his tax affairs to his accountant, accept the authority of his trade union in all matters of employment, follow...the advice of a teacher regarding...the education of his children, accept the right of one's friends to determine the programme of a group holiday, and the division of duties among its participants, etc. We recognise that responsibility for one's life is consistent with handing power over to someone else." 55

The irony is that Raz, having established that the logical space for the operation of authority, failed to consistently theorise the limits of that space when he elaborated his account of the justification of authority. The anarchist challenge to Raz, which is best understood as the fallacious claim that the authorities he describes have no jurisdiction, is a challenge from the perspective of the independence condition; rather than attacking the normal justification thesis, it simply purports to render it redundant. It also underlines the fact that many important questions are unanswered by Raz's abstract formulation of the independence condition. The anarchist argues that it is never more important to decide correctly than to decide independently. Raz responds that, sometimes at least, it is. But when? Which matters fall which side of the divide, and how do we decide? Raz proposes the beginnings of an answer, but no more, in his recent lecture. First, he

53 54 55

R.P Wolff, In Defence of Political Anarchism, esp. chapter 1 Cf Raz's similar interpretation of the claims of the anarchist, Morality of Freedom 57 Authority 12

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emphasises the importance of independent mistake making as a means to "cultivate the ability to be self-reliant".56 So the independence condition operates with more force when a mistake now is a means of avoiding further mistakes in future, a step to developing the expertise that will eventually remove the need for authority. Secondly, he highlights that it is in the nature of certain social forms, like marriage, that their value can only be instantiated by an independent choice. 57 These are difficult and fascinating questions and, like Raz, I feel the need for a substantive treatment of this problem. But that is not our present project. Moving beyond the anarchist, we will see in the next section that the value of democracy poses a potent threat to Raz's explanation of the concept of authority. III - THE DEMOCRACY OBJECTION The suspicion that the service conception of authority is in some measure incompatible with the value of democracy has become commonplace. Jeremy Waldron acknowledges that the service conception is "the conception of authority standardly accepted among legal philosophers" but argues that it "is not the only conception of authority relevant in circumstances of disagreement." 58 Hershovitz argues that the service conception fails to "capture the conditions under which a democratic authority is legitimate. 59 Besson characterises "the accommodation of democratic law-making procedures in Raz's account of legal authority" as a "growing challenge for Raz's service conception". 60 And Wojciech Sadurski notes that "Joseph Raz's so-called service conception...has frequently been charged with displaying insufficient respect for the importance of procedurally democratic law-making as a significant factor in judging the legitimacy of laws." 61 Collectively, these democratic critiques of the service conception constitute a pincer movement, by adopting both of the critical strategies for disagreeing with Raz that I identified in my introduction. Waldron represents the first approach. He argues that

56 57 58 59 60 61

Revisiting 1015 Revisiting 1016 Law and Disagreement 84 Hershovitz 201 Besson 89 Sadurski 378

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there are authorities that that deserve respect despite their failure to fulfil the normal justification thesis. In the "circumstances of politics", where disagreement is endemic, there is some value in simply coming to a decision, whether it is right or wrong. 62 Hershovitz and Besson represent the other approach. They argue that Raz draws the boundaries of political authority too widely as there are authoritative decision that fulfil the requirements of the normal justification thesis but that do not deserve legitimacy. Only this second version of the democracy critique is jurisdictional, and so it will form the focus of this section. Hershovitz's basic argument is that we don't only care about the substance of the decisions that political authorities make; we also care about how they are arrived at:

"Judging the directives of a doctor or a music instructor solely on the basis of their substance makes a lot of sense. This is because we regard the doctor and the music instructor as experts; how they became experts is of no consequence as long as they truly are...Political authority is different. We do care how governments reach the decisions they make". 63

Unfortunately, as we noted above, Hershovitz formulates his critique as an attack on the normal justification thesis, rather than the service conception more widely:

"This shows us one way in which the normal justification thesis is incomplete as a theory of legitimacy for political authorities: Governments that fulfil it may fail to be legitimate on procedural grounds...It is important to recognise...that the normal justification thesis leaves out important tests we ought to apply in determining whether our political authorities are legitimate." 64

Here, Hershovitz articulates a very powerful criticism of the service conception, but he deprives it of much of its impact by misidentifying the component of the service conception that it hits. His argument that the normal justification thesis is "incomplete" fails because it is only supposed to be an incomplete theory of legitimacy in the first place; this is a jurisdictional argument and as such should be aimed at the jurisdictional

62 63 64

Law and Disagreement 102 Hershovitz 213 216-218

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principle of the service conception which, as I explained above, is the independence condition. To see why it is a powerful objection to Raz's account of authority, we need to remind ourselves of Raz's own understanding of the task he is undertaking in the service conception. He aspires to develop "a discussion of a concept which is deeply embedded in the philosophical and political traditions of our culture." And one part of this discussion requires "an attempt to make explicit elements of our common traditions", whilst acknowledging that certain aspects of this explanation will be controverisial. 65 This puts certain constraints on the degree to which Raz's conception of authority can surprise us if it is to be successful. Although a degree of controversy is inevitable, there are certain aspects of authority, as the concept is "embedded in our culture", to which any philosophical account must be faithful. With this in mind, Hershovitz's argument shows persuasively that the service conception's apparent blindness to the value of democracy is a serious flaw. His core argument is best expressed in jurisdictional terms: the service conception fails because it grants authoritative jurisdiction to authorities that do not merit it, ones that "fail to be legitimate because, even though they produce good law, they do it without showing proper respect toward their citizens." 66 In short: we deny legitimacy to non-democratic governments even when, on the balance of reasons, they succeed inmaking sound decisions, and the service conception fails to acknowledge this. However, Hershovitz's argument is less successful than it should be because it is expressed as an objection to the normal justification thesis. In fact, in proposing a scenario where the normal justification thesis is fulfilled, yet the authority is still not legitimate, this criticism should be aimed at the jurisdictional principle which, as we saw above, is Raz's "independence condition". Only now are we in a position to truly appreciate the best version of Hershovitz's argument. It runs as follows: The jurisdictional principle in the service conception of authority is deficient, because the independence condition fails in the essential task of denying legitimacy to rational and expert dictators. In this form, it is an objection whose success can be more carefully assessed.

65 66

Morality of Freedom 63-64; (or A&J 27-28) Hershovitz 216

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As discussed above, Raz maintains that the jurisdictional limits of the service conception are set by the (unarticulated) dichotomy between matters that we should decide for ourselves and matters that we should decide correctly. The democratic critique challenges this by proposing that this is a false dichotomy. It suggests that for some matters, regardless of their status under the independence condition, what matters is not whether we decide correctly or independently, but rather how the decision is arrived at. The independence condition permits Raz to evade the critique that the service conception has no principled substantive limits. But it does not allow his to evade this more subtle allegation that it has no principled procedural limits. As it happens Raz has occasionally hinted, in embryonic form, at a possible defence to this objection. But it relies on an idiosyncratic account of the value of democracy. In one essay, he suggests that democracy is only substantively, rather than procedurally valuable, "it shares the general structure of authority and relies, for its legitimacy, on its ability to deliver sound decisions". 67 And, more recently in Revisiting the Service Conception, he reveals (in a footnote) that it is "no accident that my account...makes no special reference to democratic authority". He cautions the reader against falling "prey to the current, and much abused, democratic rhetoric." 68 This stance is clearly not supposed to be anti-democratic. Raz is simply intimating that democracies, like any other form of government, normally rely for their legitimacy on their ability to guide their subjects in following right reason. Understanding the democratic critique as a jurisdictional critique, however, exposes the weakness of this argument. Hershovitz lays down the clear challenge that sometimes we demand more from our authorities than right reason. Sometimes, perhaps even often, we are unwilling to acknowledge the legitimacy of authorities even when they "get it right". And this, as part of the concept of authority that is embedded in our culture, should be reflected in the service conception of authority. And, as a jurisdictional issue, it should be reflected in the jurisdictional principle of that conception. But it is not. So, having restated the service conception to bring the independence condition into sharper focus, we can now see that it is the true target of ultimately sound criticism that

67 68

Joseph Raz, Liberalism, Scepticism and Democracy, in EPD, at 117 Revisiting 1031

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had previously been aimed, erroneously, at the normal justification thesis. And so Hershovitz shows, inadvertently, that the independence condition needs modifying. The dichotomy it embodies is false and it must be rejected. The independence condition should be replaced with a jurisdictional principle that draws tighter boundaries, along the following lines: Even an authority that meets the requirements of the normal justification thesis is legitimate only when the matters regarding which it issues directives are such that with respect to them, the most important thing is conformity to right reason, as opposed to independent or collective decision making. Note that this new jurisdictional principle is still coherent even to sympathisers of Raz's austere conception of the value of democracy. It does not change the boundaries of the authorities that they would argue are legitimate; they can simply apply it on the grounds that there are no matters where collective decision making is more important than independence. Its significance is that it makes the service conception coherent from the point of view of those who think that this category of matters does exist, a point of view from which Raz's version of the service conception ­ even with the independence condition acknowledged ­ is inadequate. CONCLUSION I have sought to show that once we recognise the importance of Raz's reluctantly developed jurisdictional principle ­ the independence condition ­ we have a better understanding of the service conception of authority. Furthermore, we are better placed to truly understand the impact of jurisdictional criticism of that conception. Criticism that the service conception imposes no substantive limits on the concept of authority is unfounded, because the independence condition is a substantive limit: it specifically excludes authority over all those matters that we ought to decide for ourselves. On the other hand, criticism that the service conception imposes no procedural limits on the concept of authority appears to be sound. But this does not mean that the normal justification thesis should be modified; rather, it means that the independence condition should be modified. This has important ramifications for each of the features of the service conception highlighted in my introduction. First, the intuitive attractiveness of Raz's account of

22

authority is reinforced by the presence of a carefully articulated jurisdictional principle. We might say that the jurisdictional principle acknowledges that authorities are only legitimate when the service they provide is truly a service. Anyone who has ever been proffered a hand towel and a squirt of aftershave by the mysterious attendant in a restaurant toilet can appreciate that an apparent service is not always appropriate. By restricting the service provided by authorities to those circumstances where the most important thing is to follow right reason, the jurisdictional principle ensures that the service conception of authority is indeed an account of a "service", in the true meaning of the term. Secondly, the jurisdictional principle further underlines the sceptical conclusions as to the legitimacy of real life authorities that the service conception leads us to. Not only do authorities lack legitimacy when they are inexpert; even expert authorities lack legitimacy when they issue directives that inappropriately cover subject matters that ought to be decided independently or collectively - even if that creates a risk that the decisions will appear "wrong" when judged against the requirements of reason. Thirdly, the surprising agent-specificity of the service conception is exacerbated by the independence condition. One thing that is clear about the divide between those matters that ought to be decided independently and those that ought to be decided correctly is that it will vary from one individual to another. A trainee physician needs to make mistakes in order to learn that a consultant surgeon should be restrained from making. The legitimacy of authoritative interference in these matters varies accordingly. Finally, properly acknowledging the jurisdictional aspect of the service conception of authority points to one way in which we can better understand the status of the normal justification thesis. It highlights that that thesis in fact combines two distinct theses. The first is justificatory. It is the claim that authority can be justified by the service it provides of helping its subjects follow right reason. This, I think, is correct. Raz's account of the value of authoritative solutions to coordination problems is a powerful example of this possibility. The second, and controversial, thesis within the normal justification thesis is not justificatory; rather it is the claim that this represents the normal justification of authority. This claim is harder to assess, but understanding the importance of the jurisdictional aspect of the service conception offers a potential starting point. The larger the area excluded from the exercise of authority, the smaller the scope of the normal justification thesis. And the smaller its scope, the less likely it is that it represents the normal way of justifying authority. This is where the democratic critics of the service

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conception are most successful. Their arguments can be understood as the claims that, first, the appropriate jurisdiction for the service conception excludes all those matters where authority stems from the collective attributes of decision making, and that, secondly, this ­ rather than providing the service of tracking right reason ­ is where the normal justification of political authority lies. On these matters, I have asked more questions than I have provided answers. But I believe they are questions that we can only begin to tackle once we acknowledge that Raz's service conception of authority includes a rich and controversial account of the general limits ­ the "jurisdiction" ­ of authoritative action.

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