Joseph Raz

(? - 2022)

H. L. A. Hart is heir and torch-bearer of a great tradition in the philosophy of law which is realist and unromantic in outlook. It regards the existence and content of the law as a matter of social fact whose connection with moral or any other values is contingent and precarious. His analysis of the concept of law is part of the enterprise of demythologising the law, of instilling rational critical attitudes to it. Right from his inaugural lecture in Oxford he was anxious to dispel the philosophical mist which he found in both legal culture and legal theory. In recent years he has shown time and again how much the rejection of the moralizing myths which accumulated around the law is central to his whole outlook. His essays on “Bentham and the Demystification of the Law” and on “The Nightmare and the Noble Dream” showed him to be consciously sharing the Benthamite sense of the excessive veneration in which the law is held in Common Law countries, and its deleterious moral consequences. His fear that in recent years legal theory has lurched back in that direction, and his view that a major part of its role is to lay the conceptual foundation for a cool and potentially critical assessment of the law are evident.

Particularism's model of explanation is challenged on the ground that a sensible intelligibility principle requires that there must be an explanation for the difference between a good and a bad action. Raz is concerned with what it is to be guided by reason, as well as with the results of the fact that reason can often undermine particular outcomes. What determines the moral status of an action must extend beyond what the agent's reason for acting is. It is argued that there is a clear distinction between the evaluative and guiding functions of reasons.

My remarks will focus primarily on the connection between the thesis of the Guise of the Good, and actions under the Guise of the Bad. I distinguish and discuss separately two versions of the Guise of the Bad thesis. The normative version claims that it is possible to perform an action that one believes to be bad (to have bad-making features) and for the reason that it is, as the agent believes, bad. The motive version claims that an agent can, without having any relevant false beliefs, perform actions motivated by the badness of those actions, namely by features of the actions that make them bad. I defend the Guise of the Good thesis, and explain the apparent inconsistency between it and the guise of the bad. I argue that the motive version of the Guise of the Bad thesis is true, and that what I explain as Luciferian action may be possible, if so showing that the normative version too is true. However, to the extent that action under the Guise of the Bad is possible it does not contradict the Thesis of the Guise of the Good.

Using the accounts of Gewirth and Griffin as examples, the article criticises accounts of human rights as those are understood in human rights practices, which regard them as rights all human beings have in virtue of their humanity. Instead it suggests that (with Rawls) human rights set the limits to the sovereignty of the state, but criticises Rawls conflation of sovereignty with legitimate authority. The resulting conception takes human rights, like other rights, to be contingent on social conditions, and in particular on the nature of the international system.

What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that reason is the same in all domains. According to them, only the contents of the law differentiate it from other areas of inquiry, whereas its mode of reasoning is the one common to all domains of inquiry.