Just ’Cause You're Smarter than Me Doesn't Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis

Joseph Raz's famous theory of authority is grounded in three claims about the nature and justification of authority. According to the Preemption Thesis, authoritative directives purport to replace the subject's judgments about what she should do. According to the Dependence Thesis, authoritative directives should be based on reasons that actually apply to the subjects of the directive. According to the Normal Justification Thesis (NJT), authority is justified to the extent that subjects are more likely to comply with right reason by following the authority's directives than by following their own judgments about what right reason requires.1 In this article, I consider a number of ways in which NJT might be construed as a justification for authority. First, I evaluate NJT construed as a principle that would provide a practical justification for an individual to accept or recognize a particular person or persons as a preemptive authority. Second, I evaluate NJT construed as a principle that describes the conditions under which a state or legal system is morally legitimate. I argue that NJT is true under none of these interpretations.2 1. The Normal Justification Thesis The Razian analysis of authority begins with the idea that the conceptual function of authority is to 'mediat[e] between people and the right reasons that apply to them'.3 To discharge this function, a normative system, like a legal system, must * Department of Philosophy, Seattle Pacific University. Email: bimma@spu.edu. I am indebted to an anonymous reviewer for a number of very helpful comments and suggestions. 'Joseph Raz, 'Authority, Law, and Morality' in Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994) (hereafter referred to as ALM). 2 I Should point out that these interpretations of NJT need not be considered mutually exclusive. One might take the position that the proper interpretation of NJT varies according to context or that it functions in more than one way, perhaps, for example, as both a principle of practical rationality and a principle of moral legitimacy. I do not know whether these interpretations are correct, but it is not important for my purpose. If I am successful in showing that none of the specific interpretations succeed, then it follows that none of these interpretations of NJT provides the correct account of authority. 3 ALM 214. @ The Author 2006. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org This content downloaded from 157.55.39.17 on Fri, 02 Sep 2016 05:04:27 UTC All use subject to http://about.jstor.org/terms 122 Oxford Journal of Legal Studies VOL. 27 satisfy two conditions. First, it must be the source of directives that reflect the balance of right reasons with respect to what subjects ought to do.4 Thus, according to the so-called Dependence Thesis, 'authoritative directives should be based, among other factors, on reasons which apply to the subjects of those directives and which bear on the circumstances covered by the directives'.5 Second, a normative system must, so to speak, stand between people and right reason in the following sense: the authority's decision must be able to replace (or preempt) the reasons that would otherwise be considered by the subject. As Raz puts it: The [authority's] decision is ... a reason for action. They ought to do as he says because he says so ... [But] it is not just another reason to be added to the others, a reason to stand alongside the others when one reckons which way is better supported by reason ... The decision is also meant to replace the reasons on which it depends.6 According to the Preemption Thesis, 'the fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should replace some of them'.7 The 'service conception' of authority suggests a thesis regarding the justification of authority. According to the Normal Justification Thesis (NJT), authority is justified to the extent that the subject is more likely to do what right reason requires by following authoritative directives than by following her own judgment: The normal and primary 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 [objectively] 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, than if he tries to follow the reasons which apply to him directly.8 Though NJT is not implied by the service conception of authority, it coheres well with it: given the mediating function of authority, it is natural to suppose that authority is justified only insofar as it does a better job than its subjects of deciding what right reason requires. To see the motivation for NJT, it is helpful to compare the justification for taking someone's advice. Consider a case in which one person A will be hurt if 4 Right reasons, for Raz, are those reasons that objectively apply to a person regardless of whether she is subjectively aware of them. Likewise, the balance of right reasons should also be construed as an objective notion: what the balance of right reasons requires does not depend on how the subject perceives that balance. 5 ALM 214. 6 ALM 212-13 7 ALM 214. This distinguishes authority from other forms of normativity. Many normative propositions function as first-order reasons. For example, conditional normative statements, such as 'you should eat your broccoli to stay healthy', functions as a first-order reason that may compete with other first-order reasons, such as that expressed by the statement 'you should eat chocolate because it tastes good'. sALM 214. This content downloaded from 157.55.39.17 on Fri, 02 Sep 2016 05:04:27 UTC All use subject to http://about.jstor.org/terms SPRING 2007 Legitimate Authority and the Normal Justification Thesis 123 her friend B does not accept A's advice. The desire to spare A's feelings might, depending on the circumstances, be a reason for accepting A's advice; if the matter were sufficiently inconsequential and the advice was harmless, B might be justified in accepting A's advice to avoid hurting her feelings. But, as Raz points out, that is not the normal reason for accepting advice: 'The normal reason for accepting a piece of advice is that it is likely to be sound advice'.9 The normal justification for accepting advice, then, has to do with the quality of the advice. The same is true, on Raz's view, for the justification of authority. There are many different ways a person might justify accepting authority. A person might, for example, accept the authority of a person as a way of defining her identity as a member of some group. Raz concedes that such identification can, depending on the circumstances, be 'a proper ground for accepting authority',1o but he argues that it is not the normal ground for doing so: [T]he normal and primary way to establish that a person should be acknowledged to have authority 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." Under NJT, then, authority is ultimately justified in terms of its comparative reliability in discerning what right reason requires: '[a]n authority is justified, according to the normal justification thesis, if it is more likely than its subjects to act correctly for the right reasons'.12 2. Evaluating the Normal Justification Thesis A. NJT as a Principle of Practical Rationality As it turns out, there are a number of ways to construe NJT. For example, Raz sometimes suggests that the relevant issue with respect to justifying authority has to do with the individual's acceptance of authority: Identification is a common and often proper ground for accepting authority. It is therefore important to establish the reasons why it is no more than a secondary justification dependent on the availability, at least to a certain degree, of another justification. Acceptance of an authority can be an act of identification with a group because it can be naturally regarded as expressing trust in the person or institution in authority and a willingness to share the fortunes of the group which are to a large extent determined 9 Raz 'Authority and Justification', 14 Philosophy and Public Affairs (1985), 19. (hereafter referred to as AJ). 'o AJ 20. " AJ 18-19. 12 J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 61 (hereafter referred to as MF). This content downloaded from 157.55.39.17 on Fri, 02 Sep 2016 05:04:27 UTC All use subject to http://about.jstor.org/terms 124 Oxford Journal of Legal Studies VOL. 27 by the authority. But trust in an authority is trust that the authority is likely to discharge its duties properly. It therefore presupposes a principle which should govern its