Abstract

MARTIN, Margaret. Revisiting Raz: A Reply. Isonomía [online]. 2021, n.55, pp.212-242.  Epub Feb 28, 2022. ISSN 1405-0218.  https://doi.org/10.5347/isonomia.v0i55.489.

In Judging Positivism, I argue that Joseph Raz has changed his position over time and that these changes produced inconsistencies and incoherencies in his mature position. The key claim that sets the argument in motion is the following: Raz’s account of legal systems in Practical Reasons and Norms (PRN) is grounded in, and dependent on, the claim that judges have a duty to apply the law. It is a positivistic account of law that springs from a positivistic account of adjudication. Problems emerge for Raz when he introduces moral elements into his positivistic account of law. More specifically, I explore the difficulties Raz encounters when he combines his pre-emption thesis with a moral theory of adjudication in Ethics in the Public Domain, and a morally robust theory of authority in The Morality of Freedom. André Coelho and Jorge Fabra-Zamora take issue with my critique of Raz’s account of adjudication, while Thomas Bustamante focuses his commentary on my analysis of Razian authority. In the course of responding to my critics, I revisit my interpretation of PRN, while exploring the foundational assumptions at play in the exchanges. I reject the possibility that all foundational assumptions are equally valuable: non-normative conceptual analysis is, in my opinion, not a viable methodology. I also explore the difficulties of Raz’s account of authority: while the ambiguity found in his core theses may account for its appeal, upon closer inspection, Raz struggles to keep any distance between himself and his intellectual adversaries, including Bentham and the natural lawyers.

Keywords : Raz; methodology; natural law; positivism; authority; adjudication.

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