Rights and Raz

Raz's jurisprudence rests on five interlocking theses. The sources thesis holds that law's content is determined exclusively by social facts identifiable without moral argument. The service conception of authority claims law is legitimate when subjects better comply with right reason by following legal directives than by acting on their own judgment (the Normal Justification Thesis). Law functions through exclusionary reasons—second-order reasons that exclude certain first-order reasons from deliberation rather than outweighing them. The interest theory of rights grounds rights in well-being: X has a right if X's interest is sufficient to hold another under a duty. Finally, Raz defends exclusive legal positivism: moral criteria cannot determine legal validity without violating the sources thesis and undermining law's claim to authority. These theses form a systematic account where law claims authority by purporting to mediate between subjects and the reasons that already apply to them, functioning as institutionalised exclusionary reasons identifiable by pedigree alone.

R v Howe [1987] AC 417: House of Lords held duress is no defence to murder, creating a bright-line exclusionary rule despite moral discomfort. Exemplifies how legal rules exclude first-order moral reasons from deliberation, serving law's systemic interest in certainty over individualised justice.

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147: Ouster clause could not protect decisions vitiated by jurisdictional error. Though often cited as evidence of Dworkinian moral reasoning, Raz argues judges applied source-based canons of statutory interpretation, not free-standing morality.

Gillick v West Norfolk and Wisbech AHA [1986] AC 112: Children under 16 may consent to medical treatment if sufficiently mature. Aligns with Raz's interest theory—the child's right derives from her interest in autonomy and health, not from power over another's duty.

Re A (Children) (Conjoined Twins) [2001] Fam 147: Court authorised separation killing one twin to save the other. Demonstrates interest theory's coherence: rights inhere in interests (well-being) not parental will, explaining how incapacitated infants hold rights.

R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22: Supreme Court held tribunal decisions reviewable despite ouster clause. Raz would argue the rule of law is a source-based common law doctrine, not a moral principle determining validity.

Courts applying Razian principles first identify whether a legal rule exists using the sources thesis—checking legislation, precedent, or constitutional text without moral evaluation. Next, they determine if the rule functions as an exclusionary reason, pre-empting certain considerations from judicial deliberation. In R v Howe, duress was excluded as a defence regardless of its moral weight. When interpreting rights, courts apply the interest theory by asking whether the claimant's well-being grounds the defendant's duty, not whether the claimant controls that duty. The Gillick competence test exemplifies this: the child's developmental interests, not parental authority, determine capacity. In judicial review cases like Privacy International, courts police authority's boundaries using source-based doctrines (rule of law, ultra vires) while maintaining deference within those bounds—operationalising the Normal Justification Thesis. Administrative decisions are upheld unless so unreasonable that no reasonable authority could have made them, respecting authority's exclusionary force while ensuring it remains within domains where expertise justifies deference.

Students frequently conflate law's claim to authority (a descriptive fact) with authority's justification (a normative evaluation). Raz insists unjust law still claims authority even when the claim fails. Another error treats exclusionary reasons as merely 'weightier' reasons—missing that they change deliberation's structure, not just its content. Many mischaracterise the interest theory as utilitarian, when it grounds rights in individual well-being, not aggregate welfare. The inclusive/exclusive positivism debate is often overstated: both are positivist theories disagreeing only on whether moral criteria can feature in rules of recognition. Finally, students neglect the conceptual link between authority and exclusion: the service conception explains when authority is justified, while exclusionary reasons explain how it operates.