Rights and Raz
Raz's service conception, exclusionary reasons, legal positivism, and the interest theory of rights
§01 Overview
Joseph Raz's contribution to jurisprudence represents one of the most sustained and systematic defences of legal positivism in the late twentieth and early twenty-first centuries. This note explores three interlocking dimensions of Razian theory: first, his refinement of Hart's positivism into what he terms 'exclusive' legal positivism, premised on the sources thesis; second, his service conception of authority and the related theory of exclusionary reasons; and third, his interest theory of rights, which stands in sharp contrast to the will theory advanced by Hart.
Raz parts company with Hart on several fronts—most notably in denying that law necessarily claims moral correctness (contra Alexy and Finnis) while insisting that it does necessarily claim legitimate authority. For Raz, law is not simply a union of primary and secondary rules; it is an institutionalised normative system purporting to mediate between subjects and the reasons that already apply to them. Legal norms are posited, not derived from morality, yet their existence and content depend on social facts alone (the sources thesis). This raises the central puzzle: how can law claim authority if its directives may conflict with what subjects ought, morally, to do?
Raz's answer—the normal justification thesis—asserts that authority is legitimate only when subjects are more likely to comply with right reason by following the authority's directives than by acting on their own judgment. Legal rules function as exclusionary reasons: they do not merely add weight to the balance of first-order reasons; they exclude some reasons from practical deliberation altogether. This conception has profound implications for legal reasoning, the nature of legal obligation, and the limits of judicial discretion.
The interest theory of rights completes the picture. Against Hart's will theory—which locates the essence of a right in the rightholder's control—Raz argues that X has a right if an aspect of X's well-being is sufficient to hold another under a duty. This shifts focus from autonomy to welfare and better accounts for the rights of children, animals, and incapacitated persons.
This note situates Raz within the post-Hartian landscape, critically examines his major theses, and equips you to deploy Razian arguments in tutorial essays and examination answers on authority, rights, judicial reasoning, and the boundaries of legal positivism.
Related in Theory of Politics: Political obligation and the authority of the state develops Raz's service conception of authority; Rawls — justice as fairness sets out the theory of justice behind it.
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