Rule of Law

Joseph Raz

2018
  • Joseph Raz
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The 2018 Tang Prize in Rule of Law is awarded to Joseph Raz, one of the foremost legal philosophers of our time, for his path-breaking contributions to the rule of law, and for deepening our understanding of the very nature of law, legal reasoning, and the relationship between law, morality and freedom.

 

Born in 1939, Raz started his philosophical pursuits at an early age. In 1963 he graduated from the Hebrew University, Jerusalem with Magister Juris, followed by Doctor of Philosophy (DPhil) from Oxford University in 1967, under the supervision of Herbert L. A. Hart. After teaching in the Hebrew University, Jerusalem for three years, in 1972 he returned to Oxford, where he spent most of his teaching and researching years. From 2002 onwards he has been professor in Columbia Law School in New York, and from 2011 he has been Research Professor in King’s College London.

 

An acute, inventive, and energetic thinker and writer, Raz has been making major contributions in literally every area in analytical legal, moral and political philosophy. Through rigor of thinking and analysis, he dissects complex and abstract legal concepts into clear-cut methodologies of general application, shedding light on fundamental aspects of perennial issues relating to the source and normativity of law, the idea of legal system, the nature of authority, autonomy and liberalism. Addressing the inter-relationship between law and morality, authority and individual freedom, common goods and pluralistic values, in his more recent writings, he extends his key ideas to contemporary questions in democracy and human rights, bringing out new aspects which emerge only after thorough analysis.

 

A staunch defender of legal positivism, Raz shares with his predecessor Herbert L. A. Hart that the legal validity of a rule or decision depends on its sources, rather than its merits, that law can be identified from social facts, and that there are no necessary moral criteria of legal validity. Continuing Hart’s argument that law is to be understood from the internal point of view, Raz further develops his thesis of grounding the normativity of law in practical reason – the capacity of a human being to act intentionally on reasons for action. For Raz, characterizing law as practical reason assists in reconciling the authority’s normative power to obligate and the autonomy of its subjects, hence the key to understand the legitimacy of authority.

 

Raz argues that all governments claim morally legitimate authority, but not all of them actually possess it. According to his Service Conception of Authority, political authorities possess legitimacy only when, and to the extent that, they serve their subjects. Only when the authority fulfils the conditions under which legal norms enjoy moral authority, the directive issued by the authority constitutes a reason for action that replaces the preexisting reasons for actions. His theory gives us the tool to distinguish legitimate claims of authority from those made by imposters.

 

Raz’s vision on the rule of law is consistent with his views on legal positivism, the self-sufficiency of law’s authority, and the separation of law with morality. In his article The Rule of Law and Its Virtue, first published in 1977 LQR and later as a Chapter in The Authority of Law, Raz sets out his views of the rule of law.

 

Raz started with the basic idea of the rule of law put forward by F. A. Hayek, that the rule of law means ‘that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.’ But criticized Hayek for infusing too much ideal and significance. For Raz, the rule of law means simply that, and cannot mean ‘the rule of the good law’, lest ‘its nature is to propound a complete social philosophy.’

 

Raz lays out the principles of the rule of law include the following:

1).All laws should be prospective, open and clear.

2).Laws should be relatively stable.

3).The making of particular laws (particular legal orders) should be guided by open, stable, clear and general rules.’

4).The independence of the judiciary must be guaranteed.

5).The principles of natural justice must be observed.

6).The courts should have review powers over the implementation of the other principles.

7).The courts should be easily accessible.

8).The discretion of the crime preventing agencies should not be allowed to pervert the law.

 

As to the value of the rule of law, Raz found those often ascribed to the rule of law, such as curbing the arbitrary use of power and guarding individual freedoms, among the many virtues a legal system should possess. But for him, the most important virtue of the rule of law is to realize individual autonomy.

"But there are more reasons for valuing the rule of law. We value the ability to choose styles and forms of life, to fix long-term goals and effectively direct one's life towards them. One's ability to do so depends on the existence of stable, secure frameworks for one's life and actions. The law can help to secure such fixed points of reference in two ways: (1) by stabilising social relationships which but for the law may disintegrate or develop in erratic and unpredictable ways; (2) by a policy of self-restraint designed to make the law itself a stable and safe basis for individual planning. This last aspect is the concern of the rule of law."

 

Fearless of diving into the murky world of political theory, human nature, and the very nature of law, Raz connects ethical topics explorations of the relations between practical reason and the theory of value into the realm of rule of law and perfectionist liberalism; further engaging issues such as the legitimacy of difference, the intelligibility of value, reasons and normativity generally. The subtlety and power of Raz’s reflections on various topics, lead to many productive debates even among people with radically different views on many specific moral and political issues or diametrically opposed philosophical school of thoughts. In a true sense of philosophical output, Raz’s writings are widely studied, providing an invaluable source for anyone working in legal, moral and political philosophy.

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