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Beyond the Normal Justification Thesis: Jurisdiction in the Service Conception of

Authority

Adam Tucker*

INTRODUCTION

This is an essay about Joseph Raz’s account of the justification of authority. The

centrepiece of this account, known as the “service conception of authority”, is the

“normal justification thesis”:

“the normal way to establish that a person should be acknowledged to have authority over

another person involves showing that the alleged subject is likely better to comply with reasons

which apply to him (other than the alleged authoritative directives) if he accepts the directives of

the alleged authority as authoritatively binding and tries to follow them, rather than by trying to

follow the reasons which apply to him directly.”1

Attention to this thesis dominates critical analysis of the service conception. This is a

shame, because the service conception is richer than this suggests. On Raz’s own terms,

meeting the requirements of the normal justification thesis is neither necessary nor

sufficient for the justification of a claim to authority. It is not necessary because, as its

title intimates, this is only supposed to be the normal way to justify authority. As Raz

acknowledges, “this way of justifying…legitimate authority…is not the only one”2. But

neither is it sufficient, because a purported authority can successfully conform to the

requirements of the normal justification thesis and yet still lack legitimacy. This flexibility

has an important consequence for criticism of the service conception: the two most

obvious critical strategies cannot, by themselves, succeed. The first critical strategy

would be to challenge the service conception by pointing to an instance of apparently

* Lecturer in Law, Christ Church, Oxford and Research Student, School of Law, University of Manchester.

This draft was prepared for the Jurisprudence Discussion Group, November 2007. I would warmly

welcome feedback ([email protected]) but please contact me before citing! Thanks to John Coggon

for kindly reading and improving an earlier draft of this paper. 1 Joseph Raz, The Morality of Freedom (Oxford: OUP, 1986, 53 2 Morality of Freedom 53

legitimate authority that failed to meet the requirements of the normal justification thesis.

Such a challenge would be incomplete because the service conception admits the

existence of legitimate authorities that are justified in some other way. To succeed as an

opponent of the service conception, our first critic would have to establish not only that

their example authority was legitimate, but also that the way in which it was justified, as

opposed to Raz’s way, was the “normal” way to justify authorities.3 The second critical

strategy would be to identify purported authorities that conform to the requirements of

the normal justification thesis yet which we would deny are legitimate. But this challenge

would also be incomplete, because there is more to the service conception than the

normal justification thesis. It admits that there are apparent authorities that meet the

requirements of that thesis and yet remain illegitimate. So our second critic would need

to supplement their example with an argument that its legitimacy was not otherwise

excluded by other aspects of the service conception. This second critical strategy, and

those other aspects of the service conception, are the focus of this essay.

Although it is common to encounter the criticism that the service conception casts its net

too wide, I will argue that proponents of this brand of criticism have failed to account

for the extent to which the service conception already accommodates their critique. I

will consider two variants of this critical strategy. The first, exemplified by Kenneth

Einar Himma, alleges that the service conception fails to conceptualise substantive limits

on the exercise of legitimate authority. This variant fails; Raz has elucidated substantive

limits on jurisdiction within the service conception of authority, albeit reluctantly and

equivocally. The second variant, exemplified by Scott Hershovitz, alleges that the service

conception fails to conceptualise procedural limits on the exercise of legitimate authority.

This argument succeeds, but it loses its force because it is aimed directly at the normal

justification thesis, rather than the quite separate jurisdictional limits of Raz’s theory.

Clarifying the jurisdictional aspects of the service conception allows us to see why

Himma’s argument fails, but it also exposes the real strength of Hershovitz’s position.

First, I outline the service conception of authority, and introduce the rudimentary

objection that it has no limits beyond the requirements of the normal justification thesis

(Part I). Next, I examine Raz’s curious equivocation when elucidating the jurisdictional

3 Such an argument would presumably begin by unpacking what, exactly, is meant by “normal”.

2

limits of authority and argue that once they are properly understood, his conception of

authority is immune to that rudimentary objection (Part II). Then I consider a more

telling criticism, based on the value of democracy. This objection seems to be successful,

and Raz’s jurisdictional principle needs to be modified accordingly (Part III). I conclude

by observing that this modification is warranted because the new, wider principle defines

the conditions under which the service authorities provide is indeed a service.

I - THE SERVICE CONCEPTION OF AUTHORITY: AN OUTLINE AND A RUDIMENTARY

OBJECTION

As its label suggests, the service conception of authority claims that authorities are

legitimate when they perform a service. And that service is mediating between us and

the reasons that apply to us. As Hershovitz has noted, the normal justification thesis is

“a mouthful”4, but its central insight is relatively straightforward; it simply divides

authorities into those that make us more likely to do the right thing and those that don’t,

and legitimises only the former. Raz privileges two main ways in which a political

authority can pass the normal justification thesis:

“[T]he primary arguments in support of political authority rely on its expertise (or that of

its policy making advisers) and on its ability to secure social coordination.”5

Both of these, expertise and coordination, should be understood broadly. In a narrow

sense, the meaning of “expertise” is obvious. An authority with a sophisticated

understanding of electrical matters, for example, can legitimately issue directives

concerning electrical safety. But there is more to expertise than just knowledge, as Raz

emphasises in his denial that authorities are simply “big Daddy who knows best”.6

Genuine expertise couples knowledge with the capacity to apply it properly, so an

authority which is legitimate through its expertise is likely to be marked by its “steadier

will less likely to be tainted by bias, weakness or impetuosity, less likely to be

4 Scott Hershovitz, Legitimacy, Democracy and Razian Authority,(2003) 9 Legal Theory 201, at 206 5 Joseph Raz, Introduction in Joseph Raz (ed.), Authority, at 6 6 Morality of Freedom 74

3

diverted…by temptations or pressures” and so forth.7 The expertise that grounds

Razian authorities, as befits the service that they perform, couples their knowledge of the

reasons that apply in their field with their capacity to successfully issue directives that

reflect those reasons. Similarly, there is a risk that “coordination” will be understood too

narrowly, created by the influence of what Raz calls the “artificially narrow sense of the

term” employed in game theory. For a game theorist, a coordination problem arises

when “there are several courses of action available such that each person will be best off

if he pursues any of them provided that all (or the vast majority of) the others do the

same”.8 But Raz employs a more relaxed conception of coordination. For him,

“securing coordination means just that” and coordination problems arise whenever

“without a coordinated effort, some good, which can in principle be secured at an

acceptable cost, will be lost”9. This broad understanding of coordination “increases

considerably the possibility that [people] will fail to realise that they face a coordination

problem”, and so the two key features of the service conception can meet: one way in

which authorities gain legitimacy is by possessing the expertise to spot the existence of

coordination problems10.

With this outline in place, several observations can me made. We will revisit them at the

end of the essay. First, it strikes me that the service conception is intuitively attractive,

because of the way it ties the legitimacy of authorities to their ability to serve us. Many

of the most obvious, instinctive objections to authority wither away in the Razian

conception of authorities as people or institutions that perform a service for us and

ultimately help us to do the right thing. Indeed, this is the aspect of the service

conception that Raz harnesses to discredit Robert P. Wolff’s anarchist claim that no

authority can ever be legitimate.11

Secondly, and famously, Raz’s account leads to relatively sceptical conclusions regarding

the legitimacy of real life political authorities:

7 Morality of Freedom 75 8 Authority 7, citing Lewis. 9 Joseph Raz, Facing Up: A Reply (1989) 62 Southern California LR 1153, at 1190 10 Facing Up, 1192 11 Authority 11-12

4

“[M]y account has the consequence that political authorities are likely to have a more limited

authority than…many, perhaps all of them, claim to have, and that people generally believe that

they have.”12

In principle, of course, this is an empirical claim, and is independent of Raz’s conceptual

apparatus. We might like to disagree, and argue that real life governments do in fact

typically meet the requirements of the normal justification thesis. But, especially with

regard to expertise, this conclusion seems to be sound: if the service conception does

spell out conditions for legitimate authority, then political authorities are less legitimate

than they claim and than we commonly imagine.13

Thirdly, the service conception has the surprising effect of making authority agent-

specific, because it ties legitimacy to the relative expertise of the authority and the

individual: “The authority of the state may be greater over some individuals than

others”.14 To the extent that you and I develop expertise in different spheres, the

government’s legitimacy over each of us varies depending on the sphere in which it tries

to exercise authority. I say this is surprising because it seems to conflict with the way in

which the notion of legitimacy is deployed in daily political discourse. Consider, for

example, the issue of the legitimacy of the government of Iraq. When this is discussed

we are normally talking about some kind of general measure of legitimacy. Whilst we

might be content to limit our enquiry to its legitimacy over the citizens of Iraq, it seems

odd to suggest that its legitimacy might vary from one Iraqi to another, depending on

their knowledge and expertise. At most, we would be willing to entertain the idea that

the present Iraqi authorities are more legitimate from, say, the perspective of the Shia

and Kurdish communities that that of the Sunni community. But Raz’s conception of

authority invites us to delve deeper still, as the legitimacy it deals in varies from one

individual to the next.

12 Joseph Raz, The Problem of Authority: Revisiting the Service Conception (2006) 90 Minnesota Law Review, 1003,

at 1008 13 This might lead one to expect that the main source of opposition to Raz’s account of authority would

come from those who argue that it doesn’t legitimate enough rather than those, considered in this essay,

who allege that it legitimates too much. 14 Morality of Freedom 100

5

Furthermore, the distribution of this agent-specific legitimacy seems counter-intuitive. It

appears that the law’s authority is at its weakest in electrical matters over electricians, in

driving matters over licensed drivers, in pharmacological matters over pharmacists and so

on. But this is deceptive and, measured against the combination of expertise and

coordination, this apparent problem actually highlights the greatest strength of Raz’s

account. With regard to expertise, what authority the law lacks over electricians, it lacks

because they, as experts, would do the right thing anyway. The authority lacks legitimacy

because its service is not needed. Raz’s account still has bite though as the law’s

authority over those who only think they are experts, but are not, is legitimate, and they

ought to comply with its requirements. Drivers are a case in point. And even in an

example like electricians, which seems to invoke the value of expertise, the coordination

component of authority looms large. Consider for example, the safe choice of wiring

gauge for the installation of a new kitchen. In part, this is a question of expertise, and

the expert electrician has no need of an authority to tell him what choice to make. He

can identify the safe options and make an informed decision between them. But there is

also a coordination problem, because when another electrician is hired several years later

to install new, more powerful appliances, his expertise cannot tell him what wiring is

hidden in the walls of the house. Although he can surmise that it is sufficiently thick to

safely supply the existing appliances, he cannot know whether it will cope with his new,

more powerful ones. Unless, of course, the previous electrician’s choice amongst the

safe options had been specified by an authority. Then, our second electrician knows

what gauge wiring there is (or, at least, there should be) in the walls and he can decide

accordingly whether to use the existing materials or rewire from scratch. From the

perspective of expertise alone, the electrician’s expertise prevails. But we also have

reason to coordinate our choice of wiring, so authority can be legitimate even over

experts.15

Explained like this, Raz’s conception of authority seems vulnerable to a rudimentary

objection.16 It seems that there are no principled limits to the possible extent of

15 For this reason, I think Timothy Endicott is wrong to agree with the “wise electrician” who reasons that

“he does not need the service that the law provides”. He might not need its electrical expertise, but he still

needs its coordinative assistance. See Endicott, The Subsidiarity of Law, 244-245 16 It also seems vulnerable to many far-from-rudimentary objections: it is based on a controversial

objectivist metaphysics of morality and reason; it treats authority as something to be justified only

6

legitimate authority. As long as the government can harness sufficient expertise, it can

tell us what to do. This objection makes Raz’s account of authority look impoverished,

despite its depth and complexity. Kenneth Einar Himma captured this problem

strikingly in the title of a recent article, “Just ‘cause you’re smarter than me doesn’t give you a right

to tell me what to do” where he unpacks the objection as follows:

“Construed as a sufficient condition for legitimacy, [the normal justification thesis]

implies that there are no other limits of legitimate authority”.17

Adopting legal terminology, we might say that the rudimentary objection is that there

seem to be no limits on the possible jurisdiction of legitimate authorities. In one sense,

of course, the normal justification thesis is a “jurisdictional principle”. But the

jurisdiction it defines is particular to the authority in question, whose jurisdiction simply

depends on the degree to which its attributes conform to the expectations of the normal

justification thesis. The rudimentary objection draws our attention to the deeper issue of

whether there are any general limits on the jurisdiction of authorities. Himma candidly

admits that “there is, to my knowledge, no passage in which Raz addresses the issue of

whether he believes the scope of legitimate authority extends to every requirement of

right reason no matter what the topic”.18 If this were true, I think Himma’s objection

would be devastating. Despite Raz’s protestation to the contrary19, the service

conception would do nothing more than legitimate the spectre of big Daddy who knows

best. But it is not true: there are many such passages in Raz’s articulation of the service

conception, and, as we shall see in the next section, they enable Raz to avoid the

rudimentary objection. As I indicated in my introduction, Himma has no warrant to

construe the normal justification thesis as a sufficient condition for legitimacy.

instrumentally; it is based on Raz’s version of practical reason, which requires a rigorous, perhaps even

slavish, devotion on the part of subjects who treat authoritative directives as “exclusionary reasons”. I will

not deal with these deeper issues here. 17 Kenneth Einar Himma, Just ‘Cause You’re Smarter than Me Doesn’t Give You a Right to Tell Me What to Do:

Legitimate Authority and the Normal Justification Thesis, 22 (page ref is to OJLS Advance Access Version) 18 Just ‘Cause. 25 19 See text accompanying note 6, above.

7

II - MEETING THE RUDIMENTARY OBJECTION: THE RELUCTANT EVOLUTION OF RAZ’S

JURISDICTIONAL PRINCIPLE

Really, the rudimentary objection doesn’t need meeting. Rather, we need to explain why

it never truly hits its target to begin with. Although he has equivocated and downplayed

the importance of the issue, Raz has consistently tackled the jurisdictional limits of the

service conception of authority. As we will see, however, there is a marked evolution in

the prominence it is accorded. Raz has presented the service conception of authority

several times, and the jurisdictional aspect is far more obvious in his most recent

statement of the theory that in his first. In the first version, the jurisdictional issue is

dealt with as a low key “exception”. In Raz’s most recent work, the jurisdictional issue is

dealt with in the form of a “condition” to be fulfilled alongside the normal justification

thesis.20 In this section I argue that we should prefer this most recent version; the

service conception needs stating in terms that make clear its immunity from the

rudimentary objection.

The development of the service conception of authority can be divided, schematically,

into three stages. At the first stage, Raz introduces and defends the model as a

philosophical account of authority. At the second stage, he actually deploys his model in

the course of wider arguments in legal and political theory. Finally, at the third stage, he

returns to defending it as a model of political authority.

At the first stage of Raz’s articulation of the service conception, the jurisdictional aspect

of authority is downplayed in remarkable fashion. It begins with the 1985 article

Authority and Justification21, which was reproduced (in slightly modified form) in his 1986

book, The Morality of Freedom.22 Here, the jurisdictional limits of authority are mentioned

only in outline, and gestured towards in vague terms. Following the introduction of the

normal justification thesis, the reader is cautioned that it must be supplemented by

establishing “that there are no reasons against its acceptance which defeat the reasons for

authority”.23 Raz outlines two categories of these potential countervailing reasons. The

20 The “first” version referred to is Authority and Justification, Philosophy and Public Affairs, Vol 14, no.

1, 3-29. The “most recent” is Revisiting the Service Conception, note 12, above. 21 Philosophy and Public Affairs, Vol 14, no. 1, 3-29 22 Morality of Freedom 23 Morality of Freedom 56

8

first, which we can discard for present purposes, is the presence of a competing superior

authority. The second, is a “cluster of recurring considerations” concerning “the intrinsic

desirability of people conducting their own life by their own lights”.24 The significance,

source and scope of these considerations is left unexplored and even a careful reader

could get the impression that this seminal presentation of the service conception remains

vulnerable to the rudimentary objection until its very last sentence, where Raz concludes

his defence of the service conception by dropping something of a bombshell – the

normal justification thesis only applies when doing the right thing is more important than

deciding independently:

“So far as this is done where improving the outcome is more important than deciding for oneself

this acceptance of authority…is in fact the most rational course and the right way to discharge

one’s responsibilities”.25

Raz’s next discussion of the service conception comes in his Introduction to an edited

collection of essays on the concept of authority.26 Here, the jurisdictional aspect is at

least discussed in proximity to the normal justification thesis, where it is promoted to the

status of “an important exception” and discussed in the same paragraph:

“My idea is based on the thought that whereas normally there is a case for an authority where

compliance with its directives would lead its subjects better to comply with reason than if they

were not to be guided in their action by that authority, this general rule has an important

exception. It consists of all those matters regarding which it is more important to act

independently than to succeed in doing the best.”27

This apparent embrace of “the exception”, however, is somewhat shallower than it

appears. First, this paragraph is only an anticipatory overview of Raz’s own contribution

to the collection – which is Authority and Justification, where the actual substance of his

position, including the downplaying and distancing of the exception remains as described

above. Secondly, giving the exception such prominence only serves to highlight that the

24 Morality of Freedom 57 25 Morality of Freedom 69 26 Authority. 27 Authority 13

9

service conception is, in an important sense, dependent on an underlying philosophical

issue: on what matters is it more important to act independently than to succeed in

following right reason? On this question, Raz remains apologetically silent, saying only:

“I feel the need for a substantive account of this category”.28

At this early stage, then, the service conception is immune to the rudimentary objection.

But only through the deployment of a rudimentary exception: conformity with the

normal justification thesis legitimates authority except when it is more important that

subjects decide for themselves. But as there is no discussion of how to unpack the

exception, the objection is met only at the price of begging deeper philosophical

questions.

The second stage of the development of Raz’s model comes when he actually deploys his

conception of authority to support his position in other arguments of legal and political

authority.

There are three main aspects to this stage, and the contrast between their treatments of

the jurisdictional issue is striking. First, in Authority, Law and Morality, Raz harnesses the

service conception of authority in support of a defence of his “exclusive” version of legal

positivism.29 The detail of his argument need not detain us – suffice to say that he relies

on his notion of authority in order to argue that it is not in the nature of law to contain

evaluative tests for the validity of legal rules. The conception of authority he relies on is,

of course, the service conception. However, discussion of its jurisdictional aspect is

omitted entirely. There is no mention of “the exception” and no reference to the idea

that authoritative directives can be legitimate only insofar as they apply to matters which

it is more important to decide correctly than independently. In context this is

understandable, as the wider limits of the service conception have no impact on the

argument of the article. From a broader perspective, however, the omission is doubly

unfortunate. First, it reinforces the ambivalence with which the jurisdictional issue is

treated in the more abstract accounts where it does feature. Secondly, the opening

section of this article is the shortest, sharpest and most accessible statement of the

28 Authority 13. 29 Now reprinted in Joseph Raz, Ethics in the Public Domain (Oxford: OUP, 1994), at 210-237. It was

first published in the Monist in 1985

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service conception and, as such, is a widely read introduction to Raz’s work on authority.

Furthermore, this accessibility makes this account a popular target for critical analysis,

which is thus aimed at a radically incomplete version of the theory.30

Raz’s second deployment of the service conception comes in support of a wider

argument in political philosophy; that the role of consent in the legitimation of

government can be only “marginal and secondary”.31 Here, however, the jurisdictional

issue plays a markedly more prominent role as the argument develops. Raz

acknowledges that the normal justification thesis will not satisfy an anarchist:

“An authority is legitimate, it says, only if by following it one is reasonably successful in

following right reason. What is left out is what the believer in autonomy cares about

most, i.e. that one should decide for oneself…The doubt remains whether autonomy is

consistent with handling over to the government the right to decide everything for us,

even if giving it this right will improve our conformity with reason.”32

In order to meet this objection, “the exception” is promoted to the more positive status

of a “condition” to be fulfilled alongside the normal justification thesis:

“[O]ur first condition of legitimacy [the normal justification thesis] has to be supplemented with

a second, to the effect that governments can have legitimate authority only over matters

regarding which acting according to right reason is more important than deciding for oneself how

to act…But it seems that the two conditions are in themselves sufficient to show…that the

governments that meet them are…legitimate.”33

The third deployment of the service conception is in Liberty and Trust, an article whose

central thesis is a denial of the legitimacy of moral paternalism. The general theme into

which this fits, the limits of government, provides a particularly appropriate arena in

which to explore the limits of authoritative jurisdiction. In this context, Raz again gives

his jurisdictional theory increased prominence. Governments that meet the requirements 30 E.g. Himma (consistently, note XREF) and Sadurski (at least once, note XREF) both use ALM as their

primary reference for the service conception. 31 Government by Consent, in EPD, 355 32 Government by Consent 365 33 Government by Consent 365-366

11

of the normal justification thesis, he notes, “are legitimate…only to the extent that it is

more important that people should perform the ‘optimific’ actions than that they should

decide for themselves”. This generates a distinct limit on the legitimate jurisdiction of

the state: “governments should not intervene in those matters (say, the choice of one’s

friends) where it is at least as important that people should choose for themselves as that

they should choose wisely”.34 And, in his most pithy acknowledgement of the need for a

jurisdictional principle:

“Success in improving compliance with reason is not, however, enough to establish the

legitimacy of government. It also depends on meeting a negative condition: that its jurisdiction

does not run to matters regarding which it is better that people decide for themselves, unguided

by authority than that they improve their compliance with reason.”35

However, the potential for this account of the jurisdictional principle to be considered a

genuine contribution to the development of the service conception is stunted. Firstly,

these comments are hidden within a quite separate argument about moral paternalism.

Secondly, the essay is conspicuous for the absence of explicit reference to Raz’s more

formal articulation of the service conception of authority. It might deal in the basic idea

that authorities are legitimated by their capacity to improve our conformity to reason; but

nowhere are the terms “service conception of authority” or “normal justification thesis”

mentioned.

These latter two examples expose the partial nature of the account of authority Raz

develops in Authority, Law and Morality, and so create a strong suspicion that dealing with

the jurisdictional issue only as a low-key exception in the early, abstract formulation of

the service conception was a mistake. When the service conception comes under

pressure, or the expression of a principled basis for limits on governmental power proves

particularly salient, the “exception” takes on an importance that Raz’s equivocal

approach to elucidating it seems to deny it. This is highlighted by the third stage in the

development of the service conception.

34 Joseph Raz, Liberty and Trust, in R.P George (ed.), Natural Law, Liberalism and Morality, (Oxford: OUP,

1996), at 119-120 35 Liberty and Trust 123

12

In Facing Up, A Reply36, Raz’s response to symposium criticism included a reconsideration

of the problem of the “countervailing reasons” that, at stage one, he had suggested could

limit the legitimate jurisdiction of authorities.

“I mentioned in particular the need that the matter (over which someone is said to have

authority) is not one on which it is more important that people should decide for

themselves than that they should decide correctly. This is meant to take account of the

‘intrinsic desirability of people conducting their own life by their own lights’”.37

True, but this argument connects the two, initially disjointed, aspects of this problem in a

new way that was not clear at stage one. Initially, this had been downplayed; under

critical pressure, the jurisdictional argument takes on a greater importance.

Finally, in delivering the 2005 John Dewey Lecture in the Philosophy of Law, Raz took

the opportunity to make a detailed defence of his conception of authority.38 This lecture

encapsulates the equivocation we have been examining. In the introduction, Raz again

downplays his jurisdictional principle. Indeed, he appears to label as “moderate critics”

of the service conception those who deny that the normal justification thesis expresses

sufficient conditions for legitimacy.39 This is odd. The normal justification thesis is not

a sufficient condition for legitimacy as soon as the jurisdictional principle is

acknowledged. So it seems that Raz himself - on those occasions when he adverts to this

issue - is a “moderate critic” of his own service conception at the same time as actively

deploying it in philosophical argument.40 Fortunately he takes a much clearer approach

in the main text. Here, in the most recent comprehensive exposition of the service

conception of authority, the “exception” is no more; instead, the jurisdictional aspect of

the service conception is promoted and given a label, the “independence condition”,

which must be fulfilled alongside the normal justification thesis:

36 Facing Up 37 Facing Up 1180 38 Published as Joseph Raz, The Problem of Authority: Revisiting the Service Conception, note 12 above. 39 Revisiting 1003 40 The characterisation of critics in the introduction is actually doubly confusing. It also implies that those

– including, presumably, Raz himself – who deny that the service condition describes necessary conditions

for legitimacy are “radical critics” and “reject the service conception altogether”. 1003.

13

“The suggestion of the service conception is that the moral question is answered when two

conditions are met, and regarding matters with respect to which they are met: First that the

subject would better conform to reasons that apply to him anyway (that is, to reasons other than

the directives of the authority) if he intends to be guided by the authority’s directives than if he

does not (…the normal justification thesis…). Second, that the matters regarding which the first

condition is met are such that with respect to them it is better to conform to reason than to

decide for oneself, unaided by authority (…the independence condition).” 41

In the light of the gradual evolution discussed above, this change of emphasis is not

particularly surprising. But interestingly, Raz does not acknowledge that this constitutes

a change at all. And so, although the evolution from an occasionally ignored “exception”

to the normal justification thesis to the “independence condition” which must be fulfilled

alongside it is marked, it is left unexplained.

So we are left to choose between with two rival formulations of the service conception

which, in substance, lead to the same conclusions. We might say that it doesn’t matter

whether the jurisdictional problem is expressed as an “exception” or a “condition”,

because the difference is only rhetorical. But I think this would be a mistake. Rhetoric

matters, and Raz’s final version of the service conception is preferable to his early

formulation even though they are technically the same. The difference between an

“exception” and a “condition” essentially lies in the implied importance attached to the

issue they embody: here, it is the difficult contrast between matters we should decide for

ourselves and matters we should decide correctly. This strikes me as an issue that merits

serious philosophical consideration rather than an issue that should be quietly ignored by

demeaning it as an “exception”.

This is only underlined by the nature of Raz’s equivocation on the issue: when the service

conception was employed in support of political arguments, Raz needed to bring the

exception out of the shadows and give it greater prominence than when he was only

articulating, in an abstract manner, the boundaries of the theory. The strongest form of

the service conception, then, adverts to the jurisdictional issue. It only legitimates

authority when both conditions are met, and we should be clear about that from the

41 Revisiting, 1014. The “moral question” referred to is this: “how can it ever be that one has a duty to

subject one’s will and judgment to that of another?” 1012

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outset. Following Raz, I will use the label “independence condition” for his jurisdictional

principle from now on.

There is a risk that my defence of this understanding of the service conception will

appear otiose. The independence condition, in one form or another, has featured in

virtually all Raz’s discussions of the service conception since its inception. And in his

most recent comprehensive discussion of authority, Raz adopts the approach that I

endorse. Given that the independence condition has in substance been there since the

start, and Raz ultimately settled on giving it its due, have I done anything more than

simply endorse the service conception? I think so. The rhetorical downplaying of the

independence condition permeates the literature on Razian authority to the extent that it

has disappeared from view: “the service conception of authority” and “the normal

justification thesis” have become virtually synonymous for even the most astute

commentators. Consider the following example. In order to develop his critique of the

boundaries drawn by the service conception of authority, Himma construes the normal

justification thesis as a “sufficient condition for legitimacy” and objects to the normal

justification thesis on the grounds that it seems to entail that “a legitimate state may

intrude into even the most intimate aspects of a person’s life as long as it demands of its

subjects what right reason requires.”42 But, as we have seen, this is a mistake. Himma

concludes that “NJT is incompatible with the existence of any protected spheres of

citizen autonomy”. But there is more to the service conception than the normal

justification thesis. In fact, when the service conception is fully articulated, the

independence condition fulfils the vital role of spelling out just these “protected spheres

of citizen autonomy”: namely, those matters where it is more important to decide for

oneself than decide correctly. It is tempting to surmise that this is a simple oversight:

throughout this article, Himma’s main reference work for the service conception is

Authority, Law and Morality, where, as we saw above, the independence condition is

entirely absent from what amounts to an abbreviated account of the service

conception43; and he confesses that he is unaware of any passage elsewhere where the

issue is tackled.44 But that would be too easy, and Himma’s own explanation seems

inadequate. Although Authority, Law and Morality is his main point of reference, there are

42 Just Cause 24 43 Above n XREF 44 Above n XREF

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citations to Authority and Justification45, the Morality and Freedom46 and Government by Consent47

- where the independence condition, in one form another, does appear – throughout the

article. And this is hardly Himma’s only foray into Razian scholarship: he is such a

prolific commentator on many aspects of Raz’s legal and political philosophy that it is

inconceivable that he has never encountered the various references to the independence

condition in Raz’s other publications.48 The best explanation for Himma’s failure to

advert to the importance of the independence condition surely lies in Raz’s rhetorical

downplaying of its significance. Indeed, the enduring influence of this essentially stylistic

point is strikingly captured by Himma’s sub-title: he writes about “legitimate authority

and the normal justification thesis” as if that exhausted the service conception’s

contribution to the subject. Himma is not the only commentator to overlook the

independence condition. In the next section, we will consider in greater detail the

arguments put forward by Samantha Besson and Scott Hershovitz that the service

conception ignores the value of democratic decision making.49 Still, we can note at this

point that they make the same error as Himma. Their critique is effectively jurisdictional:

it is based on the concern that the boundaries of legitimate authority drawn by the

service conception are wrong. But both target the normal justification thesis rather than

the service conception as a whole, or its jurisdictional element in particular. Besson

moves from her “challenge for Raz’s service conception”50 to the claim that the normal

justification thesis is “in need of thorough revision”51 and Hershovitz describes his own

project as an investigation of “Raz’s account of legitimacy, specifically his normal

justification thesis”.52 This elision of the wider service conception of authority and its

narrower component the normal justification thesis in arguments whose real target is the

jurisdictional principle appears inexplicable, until Raz’s own equivocation on the issue is

brought into focus. Over time, the service conception has indeed evolved to recognise

the importance of the independence condition. But the damage was already done, as

45 Above n XREF 46 Above n XREF 47 Above n XREF 48 Cite some other Himma articles. NB Their focus is usually the dependence thesis, and exclusive legal

positivism, but they still establish a deep famililarity with Raz’s work on authority. 49 Hershovitz, above. And Besson. 50 Besson 89, emphasis added 51 Besson 97 52 Hershovitz 201

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even Raz’s most careful critics have been encouraged to overlook the jurisdictional

aspect of his conception of authority, and their critiques miss their target accordingly.

There is a certain irony in this state of affairs. One of the great strengths of Raz’s

elaboration of the service conception is his treatment of political anarchism, which can

profitably be understood as a jurisdictional argument. The anarchist denies the

possibility of legitimate authority on the grounds that deference to the will of another

constitutes the breach of our duty of autonomy. 53 In the terms of the independence

condition, this amounts to an argument that there are no matters that it is more

important to decide correctly than to decide for oneself.54 So the anarchist would

conclude that the jurisdiction of a Razian authority is reduced to nothing. Through his

use of everyday examples, Raz highlighted the absurdity of this stance:

“Surely responsibility for one’s life does not require continuously deciding for oneself on every

aspect of one’s affairs. A person may with unimpeachable propriety decide to hand all his tax

affairs to his accountant, accept the authority of his trade union in all matters of employment,

follow…the advice of a teacher regarding…the education of his children, accept the right of

one’s friends to determine the programme of a group holiday, and the division of duties among

its participants, etc. We recognise that responsibility for one’s life is consistent with handing

power over to someone else.”55

The irony is that Raz, having established that the logical space for the operation of

authority, failed to consistently theorise the limits of that space when he elaborated his

account of the justification of authority. The anarchist challenge to Raz, which is best

understood as the fallacious claim that the authorities he describes have no jurisdiction, is

a challenge from the perspective of the independence condition; rather than attacking the

normal justification thesis, it simply purports to render it redundant. It also underlines

the fact that many important questions are unanswered by Raz’s abstract formulation of

the independence condition. The anarchist argues that it is never more important to

decide correctly than to decide independently. Raz responds that, sometimes at least, it is.

But when? Which matters fall which side of the divide, and how do we decide? Raz

proposes the beginnings of an answer, but no more, in his recent lecture. First, he

53 R.P Wolff, In Defence of Political Anarchism, esp. chapter 1 54 Cf Raz’s similar interpretation of the claims of the anarchist, Morality of Freedom 57 55 Authority 12

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emphasises the importance of independent mistake making as a means to “cultivate the

ability to be self-reliant”.56 So the independence condition operates with more force

when a mistake now is a means of avoiding further mistakes in future, a step to

developing the expertise that will eventually remove the need for authority. Secondly, he

highlights that it is in the nature of certain social forms, like marriage, that their value can

only be instantiated by an independent choice.57 These are difficult and fascinating

questions and, like Raz, I feel the need for a substantive treatment of this problem. But

that is not our present project. Moving beyond the anarchist, we will see in the next

section that the value of democracy poses a potent threat to Raz’s explanation of the

concept of authority.

III - THE DEMOCRACY OBJECTION

The suspicion that the service conception of authority is in some measure incompatible

with the value of democracy has become commonplace. Jeremy Waldron acknowledges

that the service conception is “the conception of authority standardly accepted among

legal philosophers” but argues that it “is not the only conception of authority relevant in

circumstances of disagreement.”58 Hershovitz argues that the service conception fails to

“capture the conditions under which a democratic authority is legitimate.59 Besson

characterises “the accommodation of democratic law-making procedures in Raz’s

account of legal authority” as a “growing challenge for Raz’s service conception”.60 And

Wojciech Sadurski notes that “Joseph Raz’s so-called service conception…has frequently

been charged with displaying insufficient respect for the importance of procedurally

democratic law-making as a significant factor in judging the legitimacy of laws.”61

Collectively, these democratic critiques of the service conception constitute a pincer

movement, by adopting both of the critical strategies for disagreeing with Raz that I

identified in my introduction. Waldron represents the first approach. He argues that

56 Revisiting 1015 57 Revisiting 1016 58 Law and Disagreement 84 59 Hershovitz 201 60 Besson 89 61 Sadurski 378

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there are authorities that that deserve respect despite their failure to fulfil the normal

justification thesis. In the “circumstances of politics”, where disagreement is endemic,

there is some value in simply coming to a decision, whether it is right or wrong.62

Hershovitz and Besson represent the other approach. They argue that Raz draws the

boundaries of political authority too widely as there are authoritative decision that fulfil

the requirements of the normal justification thesis but that do not deserve legitimacy.

Only this second version of the democracy critique is jurisdictional, and so it will form

the focus of this section.

Hershovitz’s basic argument is that we don’t only care about the substance of the

decisions that political authorities make; we also care about how they are arrived at:

“Judging the directives of a doctor or a music instructor solely on the basis of their substance

makes a lot of sense. This is because we regard the doctor and the music instructor as experts;

how they became experts is of no consequence as long as they truly are…Political authority is

different. We do care how governments reach the decisions they make”.63

Unfortunately, as we noted above, Hershovitz formulates his critique as an attack on the

normal justification thesis, rather than the service conception more widely:

“This shows us one way in which the normal justification thesis is incomplete as a theory of

legitimacy for political authorities: Governments that fulfil it may fail to be legitimate on

procedural grounds…It is important to recognise…that the normal justification thesis leaves out

important tests we ought to apply in determining whether our political authorities are

legitimate.”64

Here, Hershovitz articulates a very powerful criticism of the service conception, but he

deprives it of much of its impact by misidentifying the component of the service

conception that it hits. His argument that the normal justification thesis is “incomplete”

fails because it is only supposed to be an incomplete theory of legitimacy in the first

place; this is a jurisdictional argument and as such should be aimed at the jurisdictional

62 Law and Disagreement 102 63 Hershovitz 213 64 216-218

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principle of the service conception which, as I explained above, is the independence

condition.

To see why it is a powerful objection to Raz’s account of authority, we need to remind

ourselves of Raz’s own understanding of the task he is undertaking in the service

conception. He aspires to develop “a discussion of a concept which is deeply embedded

in the philosophical and political traditions of our culture.” And one part of this

discussion requires “an attempt to make explicit elements of our common traditions”,

whilst acknowledging that certain aspects of this explanation will be controverisial.65

This puts certain constraints on the degree to which Raz’s conception of authority can

surprise us if it is to be successful. Although a degree of controversy is inevitable, there

are certain aspects of authority, as the concept is “embedded in our culture”, to which

any philosophical account must be faithful. With this in mind, Hershovitz’s argument

shows persuasively that the service conception’s apparent blindness to the value of

democracy is a serious flaw. His core argument is best expressed in jurisdictional terms:

the service conception fails because it grants authoritative jurisdiction to authorities that

do not merit it, ones that “fail to be legitimate because, even though they produce good

law, they do it without showing proper respect toward their citizens.”66 In short: we

deny legitimacy to non-democratic governments even when, on the balance of reasons,

they succeed inmaking sound decisions, and the service conception fails to acknowledge

this. However, Hershovitz’s argument is less successful than it should be because it is

expressed as an objection to the normal justification thesis. In fact, in proposing a

scenario where the normal justification thesis is fulfilled, yet the authority is still not

legitimate, this criticism should be aimed at the jurisdictional principle which, as we saw

above, is Raz’s “independence condition”.

Only now are we in a position to truly appreciate the best version of Hershovitz’s

argument. It runs as follows: The jurisdictional principle in the service conception of

authority is deficient, because the independence condition fails in the essential task of

denying legitimacy to rational and expert dictators. In this form, it is an objection whose

success can be more carefully assessed.

65 Morality of Freedom 63-64; (or A&J 27-28) 66 Hershovitz 216

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As discussed above, Raz maintains that the jurisdictional limits of the service conception

are set by the (unarticulated) dichotomy between matters that we should decide for

ourselves and matters that we should decide correctly. The democratic critique

challenges this by proposing that this is a false dichotomy. It suggests that for some

matters, regardless of their status under the independence condition, what matters is not

whether we decide correctly or independently, but rather how the decision is arrived at.

The independence condition permits Raz to evade the critique that the service

conception has no principled substantive limits. But it does not allow his to evade this

more subtle allegation that it has no principled procedural limits.

As it happens Raz has occasionally hinted, in embryonic form, at a possible defence to

this objection. But it relies on an idiosyncratic account of the value of democracy. In

one essay, he suggests that democracy is only substantively, rather than procedurally

valuable, “it shares the general structure of authority and relies, for its legitimacy, on its

ability to deliver sound decisions”.67

And, more recently in Revisiting the Service Conception, he reveals (in a footnote) that it

is “no accident that my account…makes no special reference to democratic authority”.

He cautions the reader against falling “prey to the current, and much abused, democratic

rhetoric.”68 This stance is clearly not supposed to be anti-democratic. Raz is simply

intimating that democracies, like any other form of government, normally rely for their

legitimacy on their ability to guide their subjects in following right reason.

Understanding the democratic critique as a jurisdictional critique, however, exposes the

weakness of this argument. Hershovitz lays down the clear challenge that sometimes we

demand more from our authorities than right reason. Sometimes, perhaps even often,

we are unwilling to acknowledge the legitimacy of authorities even when they “get it

right”. And this, as part of the concept of authority that is embedded in our culture,

should be reflected in the service conception of authority. And, as a jurisdictional issue,

it should be reflected in the jurisdictional principle of that conception. But it is not.

So, having restated the service conception to bring the independence condition into

sharper focus, we can now see that it is the true target of ultimately sound criticism that

67 Joseph Raz, Liberalism, Scepticism and Democracy, in EPD, at 117 68 Revisiting 1031

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had previously been aimed, erroneously, at the normal justification thesis. And so

Hershovitz shows, inadvertently, that the independence condition needs modifying. The

dichotomy it embodies is false and it must be rejected. The independence condition

should be replaced with a jurisdictional principle that draws tighter boundaries, along the

following lines: Even an authority that meets the requirements of the normal

justification thesis is legitimate only when the matters regarding which it issues directives

are such that with respect to them, the most important thing is conformity to right

reason, as opposed to independent or collective decision making.

Note that this new jurisdictional principle is still coherent even to sympathisers of Raz’s

austere conception of the value of democracy. It does not change the boundaries of the

authorities that they would argue are legitimate; they can simply apply it on the grounds

that there are no matters where collective decision making is more important than

independence. Its significance is that it makes the service conception coherent from the

point of view of those who think that this category of matters does exist, a point of view

from which Raz’s version of the service conception – even with the independence

condition acknowledged – is inadequate.

CONCLUSION

I have sought to show that once we recognise the importance of Raz’s reluctantly

developed jurisdictional principle – the independence condition – we have a better

understanding of the service conception of authority. Furthermore, we are better placed

to truly understand the impact of jurisdictional criticism of that conception. Criticism

that the service conception imposes no substantive limits on the concept of authority is

unfounded, because the independence condition is a substantive limit: it specifically

excludes authority over all those matters that we ought to decide for ourselves. On the

other hand, criticism that the service conception imposes no procedural limits on the

concept of authority appears to be sound. But this does not mean that the normal

justification thesis should be modified; rather, it means that the independence condition

should be modified.

This has important ramifications for each of the features of the service conception

highlighted in my introduction. First, the intuitive attractiveness of Raz’s account of

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authority is reinforced by the presence of a carefully articulated jurisdictional principle.

We might say that the jurisdictional principle acknowledges that authorities are only

legitimate when the service they provide is truly a service. Anyone who has ever been

proffered a hand towel and a squirt of aftershave by the mysterious attendant in a

restaurant toilet can appreciate that an apparent service is not always appropriate. By

restricting the service provided by authorities to those circumstances where the most

important thing is to follow right reason, the jurisdictional principle ensures that the

service conception of authority is indeed an account of a “service”, in the true meaning

of the term. Secondly, the jurisdictional principle further underlines the sceptical

conclusions as to the legitimacy of real life authorities that the service conception leads

us to. Not only do authorities lack legitimacy when they are inexpert; even expert

authorities lack legitimacy when they issue directives that inappropriately cover subject

matters that ought to be decided independently or collectively - even if that creates a risk

that the decisions will appear “wrong” when judged against the requirements of reason.

Thirdly, the surprising agent-specificity of the service conception is exacerbated by the

independence condition. One thing that is clear about the divide between those matters

that ought to be decided independently and those that ought to be decided correctly is

that it will vary from one individual to another. A trainee physician needs to make

mistakes in order to learn that a consultant surgeon should be restrained from making.

The legitimacy of authoritative interference in these matters varies accordingly.

Finally, properly acknowledging the jurisdictional aspect of the service conception of

authority points to one way in which we can better understand the status of the normal

justification thesis. It highlights that that thesis in fact combines two distinct theses. The

first is justificatory. It is the claim that authority can be justified by the service it provides

of helping its subjects follow right reason. This, I think, is correct. Raz’s account of the

value of authoritative solutions to coordination problems is a powerful example of this

possibility. The second, and controversial, thesis within the normal justification thesis is

not justificatory; rather it is the claim that this represents the normal justification of

authority. This claim is harder to assess, but understanding the importance of the

jurisdictional aspect of the service conception offers a potential starting point. The larger

the area excluded from the exercise of authority, the smaller the scope of the normal

justification thesis. And the smaller its scope, the less likely it is that it represents the

normal way of justifying authority. This is where the democratic critics of the service

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conception are most successful. Their arguments can be understood as the claims that,

first, the appropriate jurisdiction for the service conception excludes all those matters

where authority stems from the collective attributes of decision making, and that,

secondly, this – rather than providing the service of tracking right reason – is where the

normal justification of political authority lies. On these matters, I have asked more

questions than I have provided answers. But I believe they are questions that we can

only begin to tackle once we acknowledge that Raz’s service conception of authority

includes a rich and controversial account of the general limits – the “jurisdiction” – of

authoritative action.

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