necessary for officials to have plans - they can always be using all things considered reasoning (ex: Ill do what the queen says cause I need a pay check, and it is easy to do, and blah blah blah) So Shapiro’s theory seems different from Hart’s. Also different from Dworkins theory because for Dworkins theory you are always using all things considered reasoning to draw out the moral elements from legal practices, so you are always thinking about associative obligations. Further, just because the matter has been settled in the past doesn't mean it was settled correctly, so you always reconsider for Dworkin. Exclusive Legal Positivism – because laws are plans, it is not possible for morality to be law. Why? because plans settle matter, that is the essence of a plan. So what is the problem? Laws try to settle moral problems/questions. This is where we get SLOP. Figuring out the existence and content of a plan cannot require consideration of the matters the plan was supposed to settle. Ex: “Ill stop smoking if stopping smoking is the right thing to do” that's not a plan. When you adopt a plan of what to do you are settling what you are doing. SO a plan would be: “Im stopping smoking.” this settles the matter Since law/plans is supposed to settle morality questions, morality cant be part of the law. Two examples: 1) Montana speed limit example. Proper speed is a reasonable rate of speed. Montana has adopted a moral standard as the law, an exclusive legal positivist will say that that standard cant be the law because it didn't settle anything. People were already required to drive a reasonable rate of speed so nothing new has been settled, so that standard isn’t law. 2) Due Process Clause: equal protection and due process themselves cant be law
Since they are asking you to do something irrational than that kind of authority doesn't exist. POSSIBLE SOLUTION: a weaker understanding of authority - Ladenson’s theory of permissible punishment (in Applbaum.) Government claiming when they make laws that not that you have a duty to do what the law says but only that the government is morally permitted to punish you. But this doesn't seem to capture the real nature of authority Comparatively: Raz, there are reasons for action that seem unique to law. When govt says “stop at the red light” that gives me a reason for me to stop and a reason to act on reasons for or against stopping. Authority creates preemptive reasons Number 2: contrary to your autonomy. 1 way this is described: you always have an obligation to consider the reasons behind something but that is probably false 2 way: it simply isn’t the nature of morality that it can change based on what an authority says. If government tells you to X you should X. If it tells you you should –X you should –X that sounds like the nature of authority, that the authority can decide the content of morality. This problem is that that isn’t how morality works. Government cant make it so people have a moral obligation to torture a kitten because the government says people should do it. Morality isn’t a matter of discretion because of what a person says (maybe God can) but it seems like governments are saying they have that power within their authority to make something permissible or not. How according to Shapiro does Raz solve this? (Service Conception of Authority) an explanation of actual authority. The purpose of authority is to serve the interest of those obligated to obey. We aren’t talking about an authority just serving people’s self interest. Instead, the government serves you by helping you act as you have a reason to do its directives create reasons because they are performing a service for you by helping mediate between the person subject to the authority and the preexisting reasons for action. In other words, the government helps people better