Joseph Raz, a commanding figure in modern legal philosophy, died in London on 2 May aged 83. He was one of three or four philosophers who made towering contributions to our theoretical understanding of law. The others were Hans Kelsen (1881-1973), HLA Hart (1907-92) and Ronald Dworkin (1931-2013). They are all gone now. Analytic jurisprudence – and, in Raz’s case, the philosophy of law washing over into the study of practical reason generally – is their legacy.
Raz, born in Haifa in 1939, was a graduate of the Hebrew University in Jerusalem. After getting his law degree, he went to Oxford to do a graduate’s work under Hart’s supervision. Then, having returned to Oxford in 1972 to take up a fellowship at Balliol College. There he remained, in one capacity or another – tutorial fellow, professor of philosophy of law, research professor – until his retirement from Oxford in 2009. But his work continued. He taught at Columbia Law School in New York City from 2002 until 2019 and at King’s College, London until his death. Berkeley Law, the Australian National University, the University of Toronto, and Yale Law School.
At each institution, Raz was a loving colleague and mentor to students, lecturers, and younger professors – intimidating them with the rigor of his analysis, but at the same time keeping them close, inspiring them with his example achieved by trusting one’s own disciplined pathways of thought. Raz had an immense influence on the two or three generations of analytic legal philosophers who followed him. There is hardly a man or woman in the field who does not owe a debt to his friendship. It has taken pains, too, to reach out to those who have not been responsible for their supervisor. Softly spoken, Raz was unpretentious, generous and sociable. He introduced scores of us to each other. I think he made us all better people.
Intellectually, what sort of influence did he have? As a student of HLA Hart, in 1994 he edited with his partner Penny Bulloch the second edition of Hart’s 1961 masterpiece The Concept of Law. That edition included a “Postscript” in which Hart defended his approach to jurisprudence against Ronald Dworkin; the “Postscript” was not complete at Hart’s death, but the editors helped Hart’s left. Hart was a legal positivist. He didn’t believe that lawyers or judges needed to engage in moral thinking to find out what the law was or how to apply it. Raz said this too, but he refined the position in a number of ways. Though it was maintained that the question of what the law is, it is a morally significant question. He explored some significance in his writing on the rule of law, for which he received the Tang Prize for the Rule of Law in 2018.
In analytic legal philosophy, we argue endlessly about what law is and whether positivism is true. Raz held his own in such conversations, but he was also interested in what this conceptual analysis amounted to and why we engage in it. It is an effort at self-understanding, so thought, is such a presence in our social environment.
His substantive contribution to these debates was striking and counter-intuitive. For Raz, positivism did not arise – as it did for Kelsen, and as it sometimes appears to do for Hart – out of a difference in status between law and morality, with morality being the more subjective of the two. On the contrary, Raz thought morality ought to pervade can human decision-making. Everyone is subject to moral reasons, and it is incumbent upon them – to judge those reasons. We have laws, however, when – for some reason – we want to displace that background role for morality and subject our decision-making to some particular control. (We may do this, for example, when there is a lack of coordination;) So moral reasoning is the default position; law operates in a minority of cases to block it, which is why finding out what the law must do without engaging in the very reasoning that it is the law’s function to supersede. This is a typical Raz line of argument. It is hard to follow because of its unexpected trajectory. But it turns the table on the anti-positivist, assigning morality an initially greater role rather than a lesser one.
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Another way of putting all this is to say that law claims authority, and the point of authority is that it is sometimes better for me to pay attention to someone else’s reasoning – better for the reasons that apply to me, including moral reasons – than to try things out on my own. Now, if law claims authority, it must be the sort of thing that has authority, which, again, it would not be possible to access law required to make the very moral judgments that authority is supposed to supersede. Raz’s position remains controversial. Dworkin, for example, argued that Raz’s exclusive positivism was too demanding;
Raz’s hands, technical arguments in jurisprudence overlapped with and illuminated issues in political philosophy. Authority had never received a convincing analysis in political philosophy – “deserves to be obeyed” – until Raz turned his attention to it. And once he has produced his analysis, drawing on deeper arguments about the reasons I can sometimes not act on the balance of reasons as he appears to me, he has never been the same again.
Sometimes the connections between Raz’s jurisprudence and his work in political philosophy were incidental, as in his theory of rights; his critique of the idea of equality; and his 1990 essay on nationhood and cultural community with Avishai Margalit.
In other cases, however, the connections were deep and systematic. Raz’s greatest accomplishment was his book The Morality of Freedom (1986). The first section was devoted to his analysis of authority which, as we have seen, was important for his jurisprudence. But most of the book was about personal autonomy and about autonomy’s role in people’s lives. It’s a lovely juxtaposition because authority is usually seen as a problem for autonomy and vice versa. Raz, however, offered a new account that did justice to both concepts and explained how they might work together in practical reasoning.
Still, his account of autonomy was disconcerting. Raz was a critic of Dworkin-style liberal neutrality about values and about the definition of the good life. He thought autonomy – the self-authorship of a person’s life – was worth nurturing only in the service of genuine values and worth respecting only in the life dedicated to the pursuit of what really mattered. In the 1980s we called this “liberal perfectionism”, and Neil MacCormick (another name to reckon with in jurisprudence) TLS John Stuart Mill’s review that Raz’s bookwas “significant and new statement of liberal principles as anything since John Stuart Mill’s From Liberty”.
For philosophers working in other areas than jurisprudence, Practical Reason and Norms (1975) was the most influential of Raz’s early writings, partly because it introduced a sophisticated conceptual scheme for understanding how reasons work in one’s practical deliberations. The idea of second-order reasons is particularly important, that is, reasons not paying attention to other reasons. Raz’s work on the different levels at which reasons operate, and its contributions to the whole of life, The Roots of Normativity, published in February this year. His work in these fields is not usually challenging and is highly regarded by his peers.
Raz’s legacy is a body of work united by dense and detailed tissues of understanding, spun between jurisprudence, political philosophy, ethics, and practical reasoning. Thumbing through The Roots of Normativitywhere Raz is figuring out what matters in life – “Well-being consists in a wholehearted and successful pursuit of valuable relationships and goals” – GE Moore’s Principia Ethica, written more than a hundred years earlier in 1903. I mean that as praise. We look at these days as they were fussy and unworldly – shocked, for example, to find that others did not have the intellectual interests he had. “Do you know, my dear,” said Moore to Mrs Moore in 1951 when he returned from his investment with the Order of Merit at Buckingham Palace: “The King had never heard of Wittgenstein? ” Raz was a bit like that, a gentle giant, otherworldly. But he was grounded in the array of friendships, and he was grounded by his family and by his camera (Joseph was a very talented photographer). We miss him. Penelope Bulloch, by the intellectual community, now in mourning, that he is nourished and sustained.