Comments on Chap. 2: Can There be a Theory of Law?

Raz on Dworkin’s Parochialism: Is He Right?

Is Raz right, when he criticizes Dworkin’s theory is a kind of parochialism, which holds legal concepts are deeply embodied within a community[1] and there is no law in community without awareness of law?[2] This essay would scrutinize Raz’s critique. The first part would outline Raz’s arguments; The second would deal with Dworkin’s theory in general, especially his so-called interpretive concepts, and compare Raz and Dworkin’s different answers to the perplexed problem (Hart’s notion), what law is; The last part would try to point out they each have inner theoretical difficulties.

I.

Raz, famous for his authority of law in jurisprudence, advocates a kind of legal theory detecting the nature of law, which could also provide universal and necessary truth of law.[3] This part would draft an outline of Raz’s standpoint on nature of law in general, which I would argue in third conflicts with his theory of authority of law in a sense

Raz considers a legal theory as a series of related true propositions about the nature of law. When a theory could grasp the nature or the necessary properties of law, it is universal and necessarily true. This thesis is central to Raz’s standpoint in double ways. On one hand, this thesis claims that the analytical approach, namely conceptual analysis, is distinguished from understanding meanings of a concept.[4] Thus, Wittgenstein’s “language games”, which may be the most powerful opposition, could not hurt Raz’s argument for the reason that Wittgenstein’s theory mainly deals with meanings of words.[5] On the other hand, it points out the task of Raz’s theory is to discover the necessary condition of the concept of law.[6]

This necessity could also be read in double ways. One way is to read this necessity as a kind of essence, without which law is not law any more.[7] In this way, Raz could say the nature of law would not change because when it changes, something we still designate as law is not law in a rigorous or philosophical sense. The other way is to interpret this necessity as necessary condition(s) of something. For example, if there is no B without A, and we have accepted B, then we must accept A as well. In Raz’s own theory, when we accept some rules as law, we must accept the authority behind these rules, otherwise, they would not be law anymore. The difference between these two interpretations is subtle, because the former is metaphysical and the latter epistemological. Raz, however, seems to combine these two views together because we could not imagine his theory of authority is not about nature of law (otherwise, his theory of authority is not a legal theory or ‘true’ theory any more).

Although Raz insists on the nature of law, he has not provided an approach or systematic access to it. As a consequence, even if we accept a theory of law is to detect the nature of law, we are still lost at sea that how we could pick out or select the necessary element(s) among the manifold properties of law. Raz doesn’t and maybe couldn’t give us the answer. He just repeats his standpoints and criticizes Dworkin, who in his eyes has been a typical advocator of parochialism in the legal theory.

II.

Raz’s critique concentrates on two aspects. The first aspect is Raz thinks Dworkin’s theory has no ambition to be universal for the reason that Dworkin considers the concept of law is part of the practice of law.[8] In his views, Dworkin may hold this standpoint, from which different communities have different legal practice, and thus their own concepts of law would be different. But Raz also considers the concept of law as both parochial and universal, which I would turn back to in a while. The second is directly deduced from the first that if Dworkin equals the concept of law to the practice of law within a community, then without awareness of the concept of law, there would no practice of law or law would not exist.[9]

These two critiques serve to double aims. The former aims to illuminate that although the concept of law is parochial, theoretical claims based on it could still be universal; the latter is designed to protect Raz’s universal claim from such a view that because there is no law in some communities, Raz’s theoretical claims could not be universal.

Our task in this part is to find whether Dworkin indeed holds these views Raz attributes to him. Crossing huge disciplines and containing seminal ideas, Dworkin’s theory is always ambiguous and difficult for any reader to rephrase or summarize accurately.[10] This part would not and could not treat all aspects of it, but emphasizes what is pertinent to our discussion. The point selected out is Dworkin’s illustration about so-called “interpretive concepts”.

“Interpretive concepts”, consisting of the second chapter of his seminal work Law’s Empire, designate a kind of concepts, which need to be treated in an “interpretive” attitude. Generally speaking, faced with these concepts, we could not either find certain essence within them or look up their definitive meanings in a dictionary or our traditional (historical) conventions,[11] but understand them through our best interpretation of them.[12] Our interpretation is dependent on the interpretive attitude, which combines two elements together: (1) there is point of our practice; (2) our practice is sensitive to this point.[13]

In detail, this point could be the purpose or value of our practice, which is not out there waiting us to discover, but constructed by interpreters themselves.[14] The practice sensitive to this point means practice could change according to interpretations of the point.[15] This kind of attitude plays an important role in Dworkin’s frame. On one hand, it reflects an internal and participant point of view of his theory. He doesn’t develop a theory based on external observation on the legal practice, but establish his whole arguments from a participant of the legal practice.[16] Otherwise, he could not claim the practice of law is sensitive to our interpretation of it. In this way, what people think of law would be equal to what law is. A radical reading of this standpoint is, from Dworkin’s view, there may not be law or the concept of law in general, but different law or concepts of law in different communities.

Our question here is whether Raz agrees with Dworkin’s idea or not. When Raz admits that the concept of law is our concept of law[17], which reflects or influences our practice of law, there is no difference between Raz and Dworkin. But Raz radically criticizes Dworkin’s idea, and I would argue in next part that this makes Raz’s theory not consistent with itself.

With respect to the second critique, whether there is no law without awareness of the concept of law in a community? Raz’s argument has conflated with two kinds of concept of law. The first kind is the concept parochial on one hand, claiming universal and necessary truth he advocates on the other hand. This paradox seems to unfold Raz’s accurate view is our parochial concept of law could be used universally to describe quasi-legal practice in other communities. When we accept this, we could definitely admit that even though people in other communities don’t have the concept of law as us, there could still be law in our sense. The second kind of concept of law is Dworkinian interpretive concepts, claiming to understand certain concepts from the internal point of view. This kind of concept is parochial (same with Raz), but could not be applied to describe or understand quasi-legal practice in other communities (different with Raz). Thus, from Dworkin’s view, we could not judge whether in other communities there is the concept or practice of law in general, but just get to know whether there is the concept or practice of law in our sense. To put it in another way, in other communities, people would understand their legal practice as other concepts, not necessary as the concept of law. Thus, the second critique developed by Raz is not successful for his conflation with two kinds of concepts.

Above all, we have detected Raz’s two critiques and Dworkin’s ideas in general. Next part would turn back to Raz’s first critique, namely, how the concept of law could be both parochial and universal.

III.

This part would analyze the inner difficulty of Raz’s and Dworkin’s theory of the concept of law. Raz advocates the concept of law is both ours and universal truth. His argument is developed with his critique of Dworkin’s opinion that this concept is just parochial. Thus, we would analyze his critique of Dworkin first.

Raz’s critique is based on our daily intuition. When Dworkin claims the concept of law is necessarily parochial because it is part of our legal practice, Raz asks a rhetorical question that any issue nowadays is related to some legal decision or another, could we consider all these issues are legal part of American or Chinese law? Here Raz introduces a distinction between A is part of B, and A is related to B. The subtle difference, in Raz’s opinion, is when A is part of B, we could rephrase A in terms of B; but when A is just related to B, when we deal with B, we should pay attention to A and get matters right without reducing A to B.[18] Raz considers the relation between our concept of law and legal practice is just like that A related with B. Thus, although our concept of law is ours, it still could make universal claims. Is Raz right? He says,

(T)he claim that a theory of law is parochial, since legal theory is part of legal practice is misguided. Legal theory is not part of legal practice, at least not in the sense required to establish its parochial nature.[19]

This conclusion inspires us to analyze Raz’s view from the relationship between theory and practice. When Raz refutes legal theory is not part of legal practice, he may just accept theory is related to practice or there is no any connection between them. This radical standpoint would make his own theory inconsistent for the reason that it seems to claim theory could not provide guidance to practice. But when Raz talks about the authority of law, he considers law could be a kind of second-order exclusive reason for people to make an action. Between theory and practice, there is clear connection, even a kind of practical reason assumed within. Thus, the methodological aspect of Raz’s theory, namely his general argumentation on the concept or nature of law, is inconsistent with the substantial aspect of his theory, the authority of law.

In Raz’s wake, come back to Dworkin’s theory. When Dworkin claims interpretive attitudes, especially practice could change and develop according to our interpretation, there is tight connection between theory and practice (the former is part of the latter), which unfolds theory could provide us reasons to act or guidance to our practice. This is surely an assumption of practical reason and this part could not provide a thorough analysis of which kind of practical reason it is (in Kantian or Aristotelian sense)[20], but just put up with two question: how could we say legal theory (the concept of law, legal rules) provides reasons for our action or guidance to legal practice? Could legal rules themselves decide how and when they should be applied?

These questions are empirical, which could not be solved in a theoretical level. What we could say here is, intuitively speaking, our action would be aimed at certain purposes and legal practice are embedded into concrete social context. How and when a legal rule should be applied, would be dependent on many elements and rules themselves or normative theoretical consideration can be just one of them.

Since there is a strong assumption of practical reason behind Dworkin’s interpretive concepts, which he could not justify, but just assume and in certain sense, the whole theory of interpretation based on this would need much more justification and refinements.

Above all, this essay has analyzed Raz’s misguiding critique of Dworkin’s parochialism, compared their subtly different conceptions of the concept of law, and pointed out the relationship between legal theory and practice consists of the inner difficulty of each theory.

[1] Joseph Raz, Between Authority and Interpretation, pp. 33-34.

[2] Id. p. 39.

[3] Id. p. 17.

[4] Id. p. 19.

[5] Id. p. 29.

[6] Id. p. 25. Raz says, “the essential properties of the law are universal characteristics of law. They are to be found in law wherever and whenever it exists”, which means when there is law, these essential properties would exist, too.

[7] Id. Thus, Raz considers the nature of law could not change in the history. It seems that he assumes something eternal or external to human history. In this sense, I would name it a metaphysical reading of necessity.

[8] Id. p. 33.

[9] Id. pp. 39-40.

[10] Even Hart, one of Dworkin’s teachers and colleagues, in his Postscript of The Concept of Law expresses the same feeling that Dworkin’s arguments are not so clear and make him rather confused. See Hart’s Postscript, in The Concept of Law, pp. 243-244.

[11] These opinions are what Dworkin calls a “semantic sting” in our legal theory. See Dworkin, Law’s Empire, p. 46.

[12] Id.

[13] Id. pp. 46-47.

[14] Id. p. 87.

[15] This is what Dworkin’s example, courtesy, represents. In his view, when we have different understanding or interpretation of courtesy, our practice or action would change accordingly.

[16] Dworkin compares our understanding of a game with courtesy. We could understand a game from the “point” of it, but we may not change our practice according to this “point”, otherwise, there is no this kind of game anymore. Dworkin comments the difference is in a game, which is influenced by our history and tradition, our interpretation is out of our practice, but in the courtesy, it is internal. I doubt this argumentation because a game and a kind of courtesy are both influenced by our history or tradition. If we accept there is no enough reason to change rules of our games, there is no to change our courtesy as well. Dworkin doesn’t say too much about this, but just quoted Gadamer’s historicized theory and criticizes it with Habermas’ view in an endnote in passing. See Dworkin, Law’s Empire, pp. 419-420.

[17] Raz, Between Authority and Interpretation, p. 32 (emphasis added).

[18] Id. p. 35.

[19] Id. p. 36.

[20] In a Kantian sense, our action should not only follow but also originate maxims that could be universalized. Categorical imperatives themselves would decide our action. But in a Aristotelian sense, there is a kind of Phronesis within our practice, which reminds us to grasp or sense the situation of our action and decide when and how we act. Thus, rules would not be the only element for us to make an action.